Citation Nr: 21065011 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 15-26 810 DATE: October 22, 2021 ORDER Service connection for right shoulder osteoarthritis, claimed as right shoulder pain, is denied. Service connection for left shoulder osteoarthritis, to include as secondary to right shoulder osteoarthritis, is denied. FINDINGS OF FACT 1. A right shoulder disability was not incurred during military service; right shoulder osteoarthritis, first documented in a July 2021 x-ray study, was not shown during the first post-service year; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service disease or injury, including the reported fall from a vehicle in December 1971. 2. A left shoulder disability was not incurred during military service; left shoulder osteoarthritis, first documented in a July 2021 x-ray study, was not shown during the first post-service year; continuity of symptomatology is not established; the disability is not otherwise etiologically related to an in-service disease or injury, including the reported fall from a vehicle in December 1971; and left shoulder osteoarthritis is not secondary to a service-connected disability. CONCLUSIONS OF LAW 1. The criteria for service connection for right shoulder osteoarthritis, claimed as right shoulder pain, 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. 2. The criteria for service connection for left shoulder osteoarthritis, to include as secondary to the nonservice-connected right 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, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1971 to December 1979. This matter comes before the Board of Veterans' Appeals (Board) from an August 2012 rating decision. In August 2018, the Board remanded the appeal to the agency of original jurisdiction (AOJ) for additional development. In a July 2020 Decision, the Board denied the claims. The Veteran appealed the Board's decision denying service connection for a right and left shoulder disorder to the Court of Appeals for Veterans Claims (Court). In a March 2021 Order, the Court granted a Joint Motion for Remand (Joint Motion), vacating the Board's decision and remanding for additional proceedings. In June 2021, the Board remanded the appeal to the AOJ for additional development consistent with the Joint Motion. Service Connection 1. Service connection for right shoulder osteoarthritis, claimed as right shoulder pain 2. Service connection for left shoulder osteoarthritis, to include as secondary to right shoulder osteoarthritis In May 2012, VA received the Veteran's claim for service connection for right shoulder pain; he indicated that his right shoulder disability began on March 1, 2012. In accompanying correspondence, he stated that while riding in a troop transport vehicle during a training exercise, a tear gas canister accidentally discharged and he fell off the vehicle, landing on his right side, injuring his right shoulder and right knee. Although the Veteran did not claim service connection for a left shoulder disability, the August 2012 rating decision denied service connection for right and left shoulder pain because a right or left shoulder disorder neither occurred in nor was caused by his military service. In his September 2012 notice of disagreement (NOD), he asserted that when he was overcome by CS gas in December 1971, he fell from the driver's hatch on a troop carrier tanker approximately ten feet to the ground. He related that he had been treated for the CS gas exposure, but not for his shoulders or back. He stated that he had "severe pain in these areas" and expressed his belief that service connection was warranted for right and left shoulder and low back disabilities. In his July 2015 substantive appeal, he described falling off the troop carrier onto his back and right shoulder when a tear gas canister opened, receiving a shot for pain from the field medic, and then being transported to the emergency room. He recalled, "I was treated for my injury, but my back and right shoulder have been causing me pain since the incident. I injured my left shoulder while on maneuvers. I also compensate for my right shoulder by using my left shoulder more." Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, service connection may 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). To establish direct service connection, there must be the existence of a present disability; in-service incurrence or aggravation of a disease or injury; and a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that such a disease manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed to have had its onset in service even though there is no evidence of such disease during the period of service. 38 C.F.R. § 3.307(a). Disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran's service treatment records are silent for complaints, diagnosis, or treatment related to right or left shoulder problems. A February 1971 pre-induction medical examination report documented that his upper extremities were normal on clinical evaluation. A December 1971 treatment record reflects the Veteran was "overcome by CS gas while on training in the field." Treatment consisted of bed rest for about four hours before being returned to his company. The record does not document any subjective complaints or objective findings regarding any right side injury, including any right shoulder or right knee pain, or any back injury. During the two months following the Veteran's evaluation for tear gas exposure, he presented to sick call six times regarding genitourinary symptoms. He did not mention any problems or pain involving either shoulder, his right knee, or his back. Reports of a retention medical examination (performed at Fort Rucker, Alabama), a May 1978 periodic medical examination, and a September 1979 periodic medical examination each documented normal upper extremities on clinical evaluation. Post-service private treatment records from S. Slobodian, M.D., dated from May 2007 to July 2011 reflect that the Veteran presented for an initial consultation regarding complaints of intermittent chest and low back pain related to a motor vehicle accident in which the Veteran's car was struck from behind in April 2007. He reported he had been employed as a plane captain for the same company for the past 23 years and he had a second position in a janitorial capacity. He denied any denied any headache, neck, or bilateral upper extremity pain symptomatology. He disclosed that his past medical history was significant for hypertension. In January 2010, the Veteran reported he had been in a second motor vehicle accident earlier in the month when he was stopped at a light and struck from behind. He reported he had developed the onset of neck pain symptomatology within one hour of the accident. He denied any radicular symptomatology into the upper extremities. He indicated that his past medical history was significant for hypertension and low back pain symptomatology from the prior motor vehicle accident. The records from Dr. Slobodian are silent for complaints, diagnosis, treatment, or reference to any right or left shoulder problems. A February 2012 private treatment record from T. Hoang, M.D., reflects that the Veteran presented for a six-month check-up. His history included hypertension, hyperlipidemia, and impaired fasting glucose. He denied any current pain, describing his pain level as 0/10 in severity. When asked what causes or aggravates his pain, he emphasized that he "feels good." During the course of his appeal, the Veteran submitted an Authorization and Consent to Release Information (VA Form 21-4142), indicating he had received treatment since March 2011 from T. Dennie, M.D., for shoulder pain. VA requested the medical records from Dr. Dennie but did not receive a response. In October 2018 correspondence, the Veteran indicated that Dr. Dennie had retired and could not be located. He stated that he had "exhausted all leads" in attempting to obtain his medical records. In November 2018, he submitted three right shoulder x-ray images dated March 13, 2012. In accompanying correspondence, he reiterated that his doctor had retired and the medical records could not be located; however, he "did discover x-rays taken in 2012 clearly revealing the trauma results in his right shoulder." He asserted that the "etiology of the injuries is [] being gassed in a training exercise and falling off a military tank." He acknowledged that the December 1971 service treatment record describing the CS gas exposure "did not include the information concerning the falling off of the tank" and suggested he "was not in a position at the time to critique the report as he was injured." The parties to the March 2021 Joint Motion agreed that the Board failed to provide adequate reasons or bases concerning whether a VA examination was warranted to decide the claim of service connection for a right shoulder disorder. The parties also agreed that the claim of service connection a left shoulder disorder was inextricably intertwined with the claim of service connection for a right shoulder disorder. In June 2021, the Board remanded the appeal to the AOJ to obtain a VA examination to ascertain the nature and etiology of the claimed right and left shoulder disorders. In July 2021, the Veteran was afforded a VA examination to evaluate his claimed right and left shoulder disabilities. He reported that he fell off a tank while training in the 1970s but could not recall how he landed. He stated he was evaluated by a medic but no studies such as x-rays were performed; instead, he was "told to 'take it easy' for a few days." He stated that he did not have any duty modifications and was considered qualified to continue his duties and/or separation from service. Regarding post-service shoulder problems, he reported that he went to see an orthopedic doctor for both shoulders in 2012, presenting a copy of a right shoulder radiograph dated March 2012, adding that "for some reason he only did x-rays of his right shoulder but not the left." Pointing to the head of the humerus, the Veteran related that the doctor told him that his bone was separated or out of place. He noted that the orthopedic doctor who evaluated him in 2012 had retired and his records were no longer available. In addition, he had not seen any other doctors for his shoulders since that time but indicated that he had seen other doctors after separation from service and "at one point an MRI was performed." The VA examiner observed that a lumbar spine MRI was performed in 2010. The Veteran stated he did not take any medications related to his shoulders. He identified his post-service occupation prior to his retirement as a helicopter plane captain. The impression of right and left shoulder x-ray examinations was mild acromioclavicular (AC) joint and glenohumeral joint arthritis, possible tendonitis, bilaterally. Following a review of the claims file and examination, the diagnosis was mild, bilateral, age-related osteoarthritis of each shoulder. The examining physician opined that the right and left shoulder arthritis was not caused by service, including the undocumented, anecdotal falling-from-the-tank episode. In support of the conclusion, the physician emphasized that subsequent in-service examination reports documented normal upper extremities without pathology. In addition, the examiner indicated he discussed the March 2012 right shoulder x-ray series with a VA radiologist, who concluded that arthritis was not present at that time. Rather, the right shoulder x-rays images were deemed to be normal. In August 2021, the Veteran presented to a VA medical center for an initial visit with a primary care physician. He indicated he had retired from his career as a helicopter plane captain and was transferring his medical care to VA. Among his main issues was "bilateral shoulder stiffness." Following a review of the July 2021 right and left shoulder x-ray studies and physical examination, the assessment included bilateral shoulder stiffness. The plan included a referral to physical therapy for arthritis in the Veteran's shoulders. Having considered the medical and lay evidence of record, the Board concludes that the preponderance of the evidence is against an award of service connection for right or left shoulder arthritis on any basis. Service connection is not warranted on a direct basis because the Veteran's service treatment records indicate that right and left shoulder arthritis was not incurred in service. The Board acknowledges that the Veteran is competent to describe symptoms of shoulder pain or stiffness and to identify the onset and continuity of such symptoms, including the reported experience of falling from a military vehicle. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that non-expert witnesses are competent to report that which they have observed with their own senses). The Board also recognizes his contention that he "was not in a position at the time to critique" the December 1971 treatment report relating to his exposure to tear gas because he was reportedly injured. However, the subsequent eight years of the Veteran's service treatment records reflect his capacity to identify and seek treatment for numerous medical complaints, including genitourinary symptoms, flu symptoms, eye irritation, sensitivity to light, and trouble hearing. Yet, the records do not reflect that he sought any treatment for right or left shoulder problems or that he described any injury involving either shoulder. Moreover, subsequent examination reports documented normal function of his upper extremities. In summary, the medical evidence most contemporaneous to the reported fall during the December 1971 tear gas exposure incident eight years of service treatment records does not support the conclusion that he experienced a right or left shoulder injury at that time or that he experienced chronic right or left shoulder problems since the reported injury. In addition to his service treatment records, post-service private treatment records weigh against a finding of continuity of right or left shoulder symptomatology since the December 1971 tear gas exposure incident and since separation from service. Notably, treatment records dated from May 2007 to July 2011 from Dr. Slobodian are entirely silent for complaints, diagnosis, or treatment related to shoulder problems and the Veteran specifically denied having any pain symptomatology involving his upper extremities. Moreover, when he established care with Dr. Slobodian in May 2007, the only significant medical history he reported was hypertension. Finally, the Veteran's report to Dr. Slobodian in May 2007 that he had worked for 23 years as a plane captain and was also currently working as a janitor suggests that he had not been impaired by a chronic right or left shoulder disability since the reported shoulder injury decades earlier. In fact, medical and lay evidence of record suggests the Veteran's claimed right shoulder disability manifested shortly before he filed his claim for service connection. In this regard, he certified in his May 2012 claim for VA compensation benefits that the statements made in the document were true and complete to the best of his knowledge and he reported that his right shoulder pain began on March 1, 2012. Consistent with the reported onset of his right shoulder pain, he submitted a radiograph of the right shoulder produced approximately two weeks later, which verifies that he had sought evaluation and treatment for his right shoulder pain. Again, the Veteran's own statement that his right shoulder pain began in March 2012 along with contemporaneous medical evidence showing he was evaluated for right shoulder pain further weighs against a finding of any continuity of right shoulder pain since military service. Rather, this medical and lay evidence suggests that the current right shoulder disability began around March 2012. The Veteran's subsequent statements in support of his claim asserting that his current right and left shoulder disabilities began in service and continued to the present time are not credible because they are unsupported by the evidence of record and inconsistent with his prior statements. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (holding that the credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character). The only medical opinion evidence to address the etiology of the current right and left shoulder arthritis disabilities is from the July 2021 VA examiner. The examiner's opinion that the right and left shoulder arthritis was not caused by the reported fall during military service and instead was related to the aging process is probative and persuasive because it was based on a review of the claims file and supported by an articulated medical explanation that is consistent with the remaining records. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value to a medical opinion). The examiner explained that the Veteran's upper extremities were normal on military examinations after the reported injury in December 1971, he noted the Veteran's report that he had worked as a plane captain until he retired, and the right shoulder radiograph from March 2012 did not yet demonstrate the arthritis that was seen on the July 2021 x-ray study. In summary, service connection is not warranted for right and left shoulder arthritis because such disability was not demonstrated in service, shown within the first year after separation from service, or otherwise etiologically related to a disease or injury (including the reported fall in December 1971) during service. Instead, the right and left shoulder arthritis was first documented on VA examination in July 2021, more than 40 years after separation from service. Finally, service connection for left shoulder arthritis is not warranted as secondary to the right shoulder arthritis because service connection for the right shoulder disability has not been established. As the preponderance of the evidence is against the Veteran's claims for service connection, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laura Kirscher Strauss 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.