Citation Nr: 21063119 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 18-41 676 DATE: October 13, 2021 ORDER Entitlement to service connection for right shoulder disorder is denied. Entitlement to service connection for right finger disorder is denied. Entitlement to service connection for left finger disorder is denied. REMANDED Entitlement to service connection for gout, to include "gouty arthritis" and/or joint arthritis, is remanded. FINDINGS OF FACT 1. The objective medical evidence shows right shoulder disorder was not incurred during active service and it is not caused by an event, injury or illness occurring in active service. 2. The objective medical evidence shows right finger disorder was not incurred during active service and it is not caused by an event, injury or illness occurring in active service. 3. The objective medical evidence shows left finger disorder was not incurred during active service and it is not caused by an event, injury or illness occurring in active service. CONCLUSIONS OF LAW 1. The criteria for service connection for right shoulder disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2020). 2. The criteria for service connection for right finger disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2020). 3. The criteria for service connection for left finger disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from October 1966 to October 1970, from January 1971 to January 1975 and from January 1987 to February 1990, during part of which service he was deployed to the Republic of Vietnam. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from a disease or injury incurred in active service or that a preexisting injury or disease was aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (a) (2020). Establishing service connection generally requires: (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 in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease; such diseases are listed in 38 C.F.R. § 3.309(a) and includes arthritis. See, Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013). Entitlement to service connection for right shoulder disorder. The service treatment records (STRs) show in the October 1966 enlistment examination and a November 1966 report of medical examination the examiners found normal upper extremities. Additionally, the Veteran denied any past or current painful or "trick" shoulder trouble. When presenting in May 1967 with back pain, the treatment provider on examination found the Veteran was sore under his right scapula and stated his impression as muscle strain, secondary to exercise. In the October 1970 examination for separation from the Veteran's first period of active service, an examiner once again found normal upper extremities and the Veteran denied any past or current painful or "trick" shoulder trouble. In further examinations during the Veteran's active duty years, to include a January 1974 periodic examination, a January 1978 flying examination and an October 1989 annual flight examination, the examiners made the same findings and the Veteran gave the same reports as above, to include reporting no use of medications. During a period of non-active service, the Veteran in September 1979 complained of worsening right shoulder anterior tenderness over the prior month, but with no significant loss of motion. The treatment provider stated his diagnosis as "R/O [rule out] rt. [right] shoulder jt [joint] pathology." Three days later, the treatment provider noted the Veteran was unresponsive to medication. The treatment provider found pain and crepitus on abduction greater than 90 degrees and tenderness on pressure over the anterior surface of the joint, yet x-rays showed nothing. He assessed the Veteran with "[p]robable acute subacromial bursitis." Near the end of September 1979, the follow-up examination indicated decreasing pain, increasing range of motion, but still tenderness to palpation over the joint. The treatment provider diagnosed subacromial bursitis, subacute. At the beginning October 1979, the treatment provider found the right shoulder was much better and within normal limits. He modified his diagnosis to "[s]ubacromial bursitis, subacute, resolving." However, the Veteran complained again of right shoulder pain later in October 1979. The treatment provider diagnosed right-subacromial bursitis. Four days later, on examination, the treatment provider found symptoms were subsiding, range of motion was now full, there was minimal tenderness to palpation over the anterior shoulder, and he assessed the Veteran with improving bursitis. By November 1979, the Veteran exhibited full right shoulder range of motion and the treatment provider assessed him with progressive but incomplete improvement. Four days later, the treatment provider noted after examination of the Veteran after a course of medication, the Veteran still had intermittent, low-grade shoulder pain. Nonetheless, examination showed full range of motion with minimal local tenderness to palpation. He again assessed the Veteran with subacute acromial bursitis. Still in a period of non-active duty, in August 1986, the Veteran presented with right leg and right-arm numbness in the past 3 weeks. He reported no chest pain, foot x-rays were normal and the treatment provider noted the Veteran's report of running 5-10 miles daily. He assessed the Veteran with tendonitis. STRs for active service periods otherwise show no further complaints, treatment or diagnoses for a right shoulder disorder. The post-active-service record for right shoulder disorder shows between October 2003 and December 2019, the Veteran received treatment at military medical facilities during which the Veteran's right shoulder disorder was noted during general treatment with overall findings of no abnormalities on periodic musculoskeletal examination. In the latter half of this period, the Veteran received diagnoses of right shoulder tendonitis. From February 2009 through June 2018, the Veteran's right shoulder disorder was noted and treated at VA, with overall findings of no abnormalities. However, February through June 2011 VA treatment notes show diagnoses of right shoulder bursitis. In a June 2016 medical statement, Dr. F.M. states it is well known shoulder strain can result from repetitive work as required for an aircraft mechanic and flight engineer. The Veteran had had right shoulder pain/tendonitis for about 39 years since he was on active duty. In May through June 2017, the Veteran underwent private physical therapy for his right shoulder. The Veteran underwent an August 2018 VA examination for shoulder conditions, in which the examiner diagnosed right shoulder-rotator cuff tear, glenohumeral-joint osteoarthritis, and acromioclavicular-joint osteoarthritis. In a January 2019 addendum, the examiner rendered an opinion for service connection, in which he stated his review of the record revealed no evidence of a shoulder complaint and condition while the Veteran was in service. As the record above shows shoulder complaints during "service," albeit in a period non-active service, the January 2019 examiner's statement is inaccurate as stated, the opinion therefore inadequate for VA adjudication purposes and the Board will not address it. The Board in September 2019 remanded the claim for another addendum opinion. As directed in the Board's September 2019 Remand, a VA examiner in January 2020 produced an opinion, in which he stated right shoulder disorder, diagnosed as rotator-cuff tear, glenohumeral-joint osteoarthritis and acromioclavicular-joint osteoarthritis, was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness, "to include his May 196[7] diagnosis of a muscle strain and the September through November 1979 diagnoses of probable acute subacromial bursitis." He explained in his rationale that, during service, the disorder was acute only, there is no evidence of chronicity of care. He added that, although the Veteran complained of shoulder pain and had a provisional diagnosis of acute subacromial bursitis, "[r]eview of the STR shows no evidence of the diagnosis or treatment for rotator cuff tear, glenohumeral joint osteoarthritis during any period of active duty." While the absence of evidence is not negative evidence, the Board finds that this opinion is supported by facts in this case. The January 2020 examiner also rendered an opinion for whether any diagnosed arthritis at least as likely as not manifested within a year of service discharge. He opined negatively and explained in his rationale that "[w]hile the veteran complained of shoulder pain and had a provisional diagnosis of acute subacromial bursitis," the STRs show no evidence of the diagnosis or treatment for shoulder rotator-cuff tear, glenohumeral-joint osteoarthritis and acromioclavicular-joint osteoarthritis during a period of active duty or within 1 year of separation. Arthritis may be eligible for presumptive service connection as a "chronic disease." 38 C.F.R. § 3.309 (a). As stated above, the record shows on October 1979 assessment of bursitis and post-service diagnoses of glenohumeral-joint osteoarthritis and acromioclavicular-joint osteoarthritis, thereby indicating arthritis, as associated with the right shoulder. However, as already stated, the STRs show no treatment or diagnoses for any form of right shoulder arthritis during active service, but only in a period of non-active service no later than November 1979, after which no further such assessments appear in the record for active service or non-active service. Moreover, looking to the possibility of continuity of symptomatology establishing a nexus between any in-service event, injury or disease and arthritis as a subsequent chronic disease, and putting aside the lack of medical evidence of any treatment prior to that time other than the dates stated above, it is otherwise impossible to establish continuity of symptomatology by relating the Veteran's current arthritis to right shoulder on the above dates. The presumption of service connection for arthritis as a chronic disease does not apply. The Board has carefully considered the Veteran's June 2011, July 2017 and September 2021 Statements in Support of Claim, as well as reports to treatment providers and examiners as they appear throughout the record. The Board is well aware that lay persons are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran is competent to provide statements of symptoms which are observable to his senses. Nonetheless, his lay evidence in turn must be weighed against other evidence, as all relevant evidence of varying kinds must be considered. The Veteran essentially contends in his statements that right shoulder bursitis is directly caused and aggravated by in-service mechanic duties, for example, reaching multiple times throughout the day above head level. He adds that his duties overall induced pain of such intensity he could not perform his duties as a flight engineer and the pain has continued from service to the present, having limited his ability to work. Yet, as noted above, the record does not show the Veteran sought treatment at separation from active service, directly afterward or in the years following until, accordingly to the record as it now stands, October 2003, approximately 13 years after separation from active service. The evidence shows the Veteran denied shoulder problems several times throughout the record after receiving treatment for the shoulder in 1979 in between service periods (see, for example, October 1986 Report of Medical History). The Board assigns greater probative weight to the opinion of the January 2020 VA examiner, as the examiner included file review, a thorough examination of the Veteran and is fully responsive to the question at issue. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in assessing the adequacy of an opinion is whether the examiner was informed of the relevant facts in rendering a medical opinion). While the Veteran's representative cites to general medical treatise evidence, this evidence does not consider the specific facts of this case. See also Jones v. Shinseki, 26 Vet. App. 56, 64 (2012) (treatise evidence should generally be weighed by the Board rather than considered indisputable fact, "given that accepted medical knowledge changes over time"). This evidence is assigned less weight. As stated, the record shows a May 1967 complaint for a sore right shoulder during active service and October through November 1979 non-active-service treatment and assessments for right shoulder bursitis. Nothing relevant follows in the subsequent periods of active service and non-active service. There is an August 1986 non-active-service complaint of right-arm numbness, with no further complaint or treatment. Subsequent medical records show the severity of any right shoulder disorder did not impel the Veteran did not seek treatment directly upon separation from his third and final period of active service or in the period of 1 year afterward. The medical evidence of record subsequent to active service cannot establish a causal relationship or "nexus" on any basis between the current right shoulder disability and any event, injury, illness, or disease during active service. For the foregoing reasons and based on the objective medical evidence, the Board finds the preponderance of the evidence is against the claim for service connection for right shoulder disorder on any basis. 2. Entitlement to right finger disorder. 3. Entitlement to left finger disorder. As stated above, the STRs show that, in the October 1966 enlistment examination and the November 1966 Report of Medical Examination, as well as in the October 1970 examination for separation from the Veteran's first period of active service, the examiner found normal upper extremities and the Veteran reported no past or current disorder with his fingers. As stated above, in further examinations during the Veteran's active-duty years, to include in the January 1974 periodic examination and the October 1989 annual flight examination, the same findings by examiners and reports by the Veteran were made, to include reporting no use of medications. The post-active-service record shows treatment records between October 2003 and December 2019 at military medical facilities including a September 2007 treatment note showing on musculoskeletal examination all fingers showed no abnormalities. However, treatment records in February and March 2008 show the treatment provider found significant pain during hand/finger flexion and she noted her concern to "rule out" tenosynovitis. Between June 2013 and June 2015, the Veteran's notes refer to bilateral trigger finger, referring to the small fingers, for which he received injections. In 2015, assessments show tenosynovitis-trigger finger was now detected in multiple fingers. In the June 2016 medical statement of Dr. F.M., he states the Veteran has had "trigger finger" for 30 years and he received an injection at his private practice in April 2014. He added that the disorder decreases grip strength, also caused by repetitive work as an aircraft mechanic and flight engineer. In an August 2018 VA examination for non-degenerative arthritis, the examiner specifically found pain attributable to the Veteran's diagnosed arthritis in his right and left-hand/finger joints, among other upper and lower-extremity joints. September 2019 treatment notes from WRNMMC show the Veteran received finger injections. In a January 2020 VA examination for hand and finger conditions, the examiner stated a 2014 diagnosis of right trigger finger and left trigger finger, as well as a March 2013 diagnosis of right-side de Quervain's tenosynovitis. She noted the Veteran's reports of constant stiffness, as well as popping, a clicking sensation and tenderness in the fingers. After extensive examination and testing, the examiner noted, although imaging studies were available, they reveal no abnormal findings or arthritis. She opined that bilateral finger disorder, including but not limited to tenosynovitis or trigger finger, was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event or illness. She explained in her rationale that there was no objective evidence of a de [Q]uervain's tenosynovitis and bilateral trigger finger condition during service. She further opined negatively for left finger disorder, stating there is no objective evidence of a left finger disorder during service and a nexus therefore cannot be established. The examiner similarly opined for right finger disorder. In looking to arthritis as associated with right and left finger disorders as a possible chronic disease for presumptive service connection, the record shows the August 2018 VA examination for non-degenerative arthritis contains findings of pain attributable to arthritis affects right and left hand/finger joints. However, the STRs for right and left finger disorders show no active service treatment or diagnoses for arthritis. For the same reasons stated in the previous section for service connection for right shoulder disorder, the evidence does not show arthritis manifesting to a compensable degree within 1 year of separation from active service and the medical evidence of record overall cannot establish continuity of symptomatology for arthritis, as associated with both finger disorders. Therefore, presumptive service connection is not available. Looking to the Veteran's September 2021 lay statement, he contends right and left finger disorder symptoms began in service due to working as a mechanic on difficult machinery in extreme conditions, specifically requiring putting his hands and fingers under significant stress, often in very cold weather, resulting in finger pain and the sensation of the fingers "locking-up," which continued and worsened after service. Once again, the Veteran is wholly competent to describe what he saw and felt, but, as serious as the Veteran claims the bilateral finger disorders to be in service, the STRs nonetheless do not show he either sought treatment for such severe symptoms or ever reported experiencing such symptoms during any of the active-service examinations. In fact, the record documents evidence of finger disorders only beginning in February and March 2008, when the Veteran's treatment provider found significant pain during hand/finger flexion and she noted her concern to "rule out" tenosynovitis, approximately 18 years after separation from the Veteran's last period of active service. Between June 2013 and June 2015, the Veteran's treatment notes refer to bilateral trigger finger, referring to the small fingers, for which he received injections. Dr. F.M. states in his June 2016 medical statement the Veteran had trigger finger for 30 years, but the record does not show this, as it does not appear from the record there was ongoing treatment outside the above 2 periods. Again, while the Veteran's representative cites to general medical treatise evidence, this evidence does not consider the specific facts of this case. See also Jones, 26 Vet. App. at 64. A clinical examination of the upper extremities in 1989 was normal. The treatise evidence is assigned less weight. For the same reasons as stated in the previous section, the Board has assigned greater probative weight to the January 2020 VA examiner's opinion that there is no evidence of the diagnosed right and left finger disorders during active service and therefore there can be no nexus between the current disorders and any finger stress, strain or injury during active service. Based on these reasons and the objective medical evidence, the Board finds the preponderance of the evidence is against the claims for service connection for right and left finger disorders. REASONS FOR REMAND Entitlement to service connection on a direct basis for gout, to include "gouty arthritis" and/or joint arthritis. As stated above, two of the four January 2020 opinions for the claim of service connection for gout, produced in response to the Board's September 2019 Remand directives, are inadequate. In the negative opinion for direct service connection for gout, the January 2020 examiner stated the STRs show "no evidence the Veteran was diagnosed with gout during a period of active service." However, although this is accurate, the STRs in fact show during a period of non-active service in April 1978 the Veteran complained of a swollen right knee, without trauma. His knee was warm, swollen and tender. The in-service treatment provider's impression was acute monoarticular arthritis, "R/O [rule out] gouty arthritis." Three days later, his symptoms resolved. Nonetheless, the treatment provider's impression was "[s]trong suspicion of gout." This evidence cannot simply be ignored. An addendum opinion should be obtained which considers and discusses the Veteran's non-active-service complaints, the treatment provider's impression upon examination and treatment and renders a conclusion as to whether the Veteran had gout prior to his entry to his third period of active service in January 1987 or, if he did, whether it had resolved before that date. Additionally, in one of the negative opinions for direct service connection for any diagnosed arthritis manifesting within a year of service discharge, the January 2020 examiner states there is no objective evidence of "a wrist/hand arthritis condition noted in the c-file." This is inaccurate. The August 2018 examiner for non-degenerative arthritis specifically found pain attributable to the Veteran's diagnosed arthritis in right and left-wrist and hand joints, among other upper and lower-extremity joints. Therefore, the question remains of whether arthritis, as associated with the joints identified in the August 2018 examination and anywhere else in the record, manifested to a compensable degree within 1 year and an opinion is again required. For these reasons, this issue is remanded for medical opinions adequate for VA adjudication purposes. The matters are REMANDED for the following action: 1. Contact the Veteran and/or his representative for information pertaining to any current treatment for gout and arthritis of any joint at any VA facility and by any private treatment provider. Obtain any records of the above treatments not yet associated with the claims file and associate them with the claims file. The assistance of the Veteran and/or his representative should be requested in obtaining any records of recent treatment as indicated. All attempts to obtain records should be documented in the claims file. 2. After all additional records have been obtained and associated with the claims file, but whether or not records are obtained, arrange for a review of this file as it pertains to gout and any joint arthritis, by an examiner with an appropriate specialty for producing findings for gout and general joint arthritis. The complete electronic claims file must be made available to the examiner in conjunction with the review. The examiner should detail all findings. If the examiner deems a new VA examination to be necessary, arrange for that examination. The examiner is requested to render opinions addressing the following: (a) Whether the Veteran has a diagnosis of gout, to include "gouty arthritis" and/or joint arthritis, which is at least as likely as not (a 50 percent or greater probability) incurred during any of the 3 periods of the Veteran's active service or is caused by an event, injury or illness occurring in any period of the Veteran's active service. (b) The examiner is requested to discuss the Veteran's non-active-service assessment in April 1978 of monoarticular arthritis, to which the treatment provider had added, "R/O gouty arthritis" and several days later stated his impression as "[s]trong suspicion of gout," and to determine whether it is at least as likely as not (a 50 percent or greater probability) the Veteran suffered from gout, "gouty arthritis" and/or joint arthritis prior to re-entry to his second period of active service in January 1987 or whether it had resolved before that date. (c) If determined to have gout, "gouty arthritis" and/or joint arthritis during any period of non-active service before entry to active service in January 1971 or before re-entry to active service in January 1987, whether it is at least as likely as not (a 50 percent or greater probability) the disorder was proximately worsened beyond its natural progress (aggravated) by injury, events or activities during any of the Veteran's 3 periods of active service. (d) Whether it is at least as likely as not (a 50 percent or greater probability) that gout, "gouty arthritis" and/or joint arthritis of any joint, to include wrist and hand, manifested to a compensable degree within 1 year of separation from any of the Veteran's 3 periods of active service. The examiner is requested to use the exact language and terminology in the examiner's opinions as stated above in the opinion questions, as deviation from such language and terminology or the use of equivocal language such as "not due to," "not caused by," "not related to," and similar phrases have been held on appeal to the Board's reviewing court to be an incorrect evidentiary standard for VA adjudication purposes. Each opinion rendered by the examiner must be accompanied by a rationale, by which conclusions are supported by references to and discussion of findings on examination, to clinical findings in the medical evidence of record and/or to accepted medical literature. The examiner is requested to comment on any relevant opinions found in the record. The examiner is also requested to discuss the Veteran's June 2011, July 2017 and September 2021 Statements in Support of Claim, as well as reports to treatment providers and examiners as they appear throughout the record. The Board urges the examiner to note that opinions rendered without discussing such lay evidence of the Veteran as it pertains to gout and arthritis of any joint will be deemed insufficient for VA adjudication purposes. 3. After completing the above development and any other development indicated, readjudicate the claim. If the benefits sought are not granted, provide the Veteran and his representative with a Supplemental Statement of the Case and allow an appropriate opportunity to respond before returning the case to the Board. EMILY TAMLYN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Franke, 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.