Citation Nr: 21064160 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 16-28 045 DATE: October 19, 2021 ORDER Entitlement to service connection for a left shoulder disorder is denied. Entitlement to service connection for a right shoulder disorder is denied Entitlement to service connection for a left elbow disorder is denied. Entitlement to service connection for carpal tunnel syndrome of the right upper extremity is denied. Entitlement to service connection for carpal tunnel syndrome of the left upper extremity is denied. FINDINGS OF FACT 1. The weight of the evidence is against finding that a left shoulder disorder manifested in service or is otherwise attributable to service; and, arthritis did not manifest within one year of separation. 2. The weight of the evidence is against finding that a right shoulder disorder manifested in service or is otherwise attributable to service; and, arthritis did not manifest within one year of separation. 3. The weight of the evidence is against finding that a left elbow disorder manifested in service or is otherwise attributable to service. 4. The weight of the evidence is against finding that carpal tunnel syndrome of the right upper extremity manifested in service or is otherwise attributable to service; it did not manifest within one year of separation. 5. The weight of the evidence is against finding that carpal tunnel syndrome of the left upper extremity manifested in service or is otherwise attributable to service; it did not manifest within one year of separation. CONCLUSIONS OF LAW 1. Left shoulder disorder was not incurred in or aggravated by service and arthritis may not be presumed to have occurred therein. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 2. Right shoulder disorder was not incurred in or aggravated by service and arthritis may not be presumed to have occurred therein. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 3. Left elbow disorder was not incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 4. Carpal tunnel syndrome of the right upper extremity was not incurred in or aggravated by service and may not be presumed to have occurred therein. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. 5. Carpal tunnel syndrome of the left upper extremity was not incurred in or aggravated by service and may not be presumed to have occurred therein. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1973 to January 1975. The Veteran's June 2016 VA Form 9 indicates that the Veteran sought both a live Board hearing via videoconference (which occurred in July 2021) and a Board hearing at the local VA office. In April 2020, VA sent the Veteran a letter requesting that the Veteran clarify his hearing request and that the Veteran had 30 days to respond to the letter. As no response has been received, the hearing request is considered withdrawn. Service Connection Service connection may be established for disability resulting from personal injury or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110 (2012). To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 131516 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994) (providing that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the medical issue is within the competence of a layperson, (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. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence is competent, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 51112 (1995). For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. 5. Upper extremity disabilities The Veteran contends his disabilities are due to use of vibrating equipment (chipping hammer and needle brush hammer) on several ships during service. See August 2014 Affidavit. As an initial matter, a claim for service connection for carpal tunnel syndrome of the upper extremities was denied in a rating decision dated in November 2011. However, the rating decision does not indicate any service personnel records were of evidence. In November 2014, the National Archives and Records Administration provided the Veteran's personnel records to VA. As additional service department records were obtained after the November 2011 rating decision, the claims for right and left upper extremity carpal tunnel is reconsidered on the merits without the need for new and material evidence. See 38 C.F.R. § 3.156(c). The Veteran's Report of Medical Examination for separation is misdated as having occurred in January 1974. However, the Veteran's listed age at the time of examination, the fact that the Report of Medical Examination lists that the Veteran had two years of military service, and the examiner's finding that the Veteran was qualified for Release from Active Duty (RAD) are all consistent with a January 1975 date for the examination. The Report of Medical Examination states that at separation the Veteran's upper extremities and neurologic system were clinically normal. The summary of defects and diagnoses only reports hearing and vision issues. A November 2007 private treatment record reports carpal tunnel syndrome was first found in February 1996. The same document notes that the Veteran had right and left shoulder pain, with rotator cuff tear history with adhesive capsulitis and degenerative joint disease of the right AC joint status post right shoulder arthroscopy with subacromial decompression and distal clavicle excision in 2006. The Veteran had a history of left shoulder pain, with adhesive capsulitis and degenerative joint disease of the left AC joint. A March 2013 private treatment record indicates that the Veteran had left shoulder pain for 10 to 15 years without injury. The treatment notes states that the Veteran worked as a demolition contractor. The Veteran also reported left shoulder pain of a similar type as the right. The Veteran had an October 2011 VA examination of the peripheral nerves. During the examination, the examiner reported the Veteran had no symptoms of right or left carpal tunnel syndrome. The examiner reported that the Veteran was never treated or evaluated for carpal tunnel syndrome. An EMG done privately 12-13 years ago showed right carpal tunnel. The Veteran had undergone surgery for carpal tunnel release in 2010. At the time, the medical records of evidence showed bilateral carpal tunnel syndrome. The examiner stated that the left carpal tunnel syndrome has resolved, and right carpal tunnel syndrome release was performed 35 years after military service and opined that it was less likely caused by or the result of military service. The examiner noted in the opinion's rationale that the Veteran owns and operates a large construction and demolition company and there was no chronological evidence to support a finding of carpal tunnel during active duty. There are several relevant VA examinations dated in January 2015, specifically for the shoulder and arm, hand and finger, elbow and forearm, and peripheral nerve system. These examinations found that the Veteran had right and left shoulder impingement (right side diagnosed in 2006 and left side in 2010) and carpal tunnel syndrome status-post transposition of the ulnar nerve. The VA opinions state that these disorders were less likely due to service. Instead, the service treatment records were silent for any shoulder disorder or carpal tunnel syndrome. The Veteran worked as a roofer post-service for many years and worked with rotary saws, rotary chippers, and air-compressor jackhammers to break up concrete. Given his extensive history of manual labor for many years after military discharge and the evidence suggests the joint and carpal tunnel issues started well over 20 years after military service. Thus, the preponderance of evidence suggests the shoulder issues are related to his manual labor working career, and not related to his military service. Further, the Veteran was found to be diabetic in 1981 and individuals with diabetes mellitus (diabetes) for an extended period are at increased risk for rotator cuff problems and to develop carpal tunnel syndrome. The Veteran is not service connected for diabetes. The Board acknowledges that lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Veteran has not contended that any lay-observable symptoms started in service, only that he believes that his current upper extremity disorders are due to service. The Veteran as a lay person is not competent to report etiology in the absence of symptoms. In contrast, the medical professionals that provided the medical opinions are competent to provide an opinion on these matters. The opinions determined that these disorders did not manifest in service, but many years afterwards, and were unrelated to service. Further, diabetes further contributes to these disorders. The examiners had knowledge of the Veteran's medical history, examined the Veteran, reviewed the evidence of record, and provided conclusions in medical documents based on sufficient facts and data. The 2015 VA opinions in particularly had all the relevant evidence (including the personnel records and other medical evidence obtained or submitted after 2011) and is entitled to the most weight. Therefore, these opinions are entitled to significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Consequently, the Board gives more probative weight to the VA opinions. The probative evidence shows there is a multiple decade gap between service and any symptoms of the claimed disorders. Neither arthritis nor carpal tunnel syndrome were noted or manifest during service or within one year of separation. At separation, the upper extremities and the nerve system were normal. Since the 1974 separation examination was normal, he did not have characteristic manifestations to identify the disease entity during such timeframe. In addition, there is no evidence of any of these disorders until many years post service. Therefore, the benefit-of-the-doubt doctrine is not applicable and the claims of entitlement to service connection must be denied. ERIC S. LEBOFF Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Yoffe, 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.