Citation Nr: 21068729 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 17-48 154A DATE: November 12, 2021 ORDER Entitlement to service connection for a right shoulder injury is denied. Entitlement to service connection for a right ankle sprain is denied. FINDINGS OF FACT 1. The competent evidence of record fails to show the Veteran's right shoulder strain at least as likely as not had its onset during active service or is otherwise related to service. 2. The competent evidence of record fails to show the Veteran's right ankle sprain at least as likely as not had its onset during active service or it otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder injury are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for service connection for a right ankle sprain are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 2005 to October 2007. He served in the Southwest Asia Theater of Operations during the Persian Gulf War. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision by an Agency of Original Jurisdiction (AOJ) of the United States Department of Veterans Affairs (VA). The Veteran testified at a December 2020 hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. These issues were previously before the Board, most recently in July 2021, at which time they were remanded for additional development. During the pendency of the appeal, a September 1, 2021 rating decision granted service connection for left shoulder strain, lumbosacral strain, left ankle sprain, and an unspecified skin condition. These actions constitute a full grant of the benefits sought, and these issues are no longer on appeal. Duty to Assist With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances...we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...."). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. 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 order to establish service connection on a direct basis, the record requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of an injury or disease; and (3) 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). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is 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)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). A layperson is generally not capable of opining on matters requiring medical knowledge. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Right Shoulder The Veteran is seeking service connection for a right shoulder injury which he contends is related to his time in service. Service treatment records (STRs) are negative for treatment for right shoulder pain and/or a right shoulder injury. No record of a right shoulder disability is noted on the Veteran's separation physical examination. VA treatment records dated June 2016 reflect the Veteran injured his right shoulder in a motorcycle accident approximately two weeks earlier. He was experiencing right shoulder pain. X-rays of the right shoulder revealed AC joint separation. Treatment notes from a November 2016 visit indicate the Veteran continued to experience right shoulder pain. At his December 2020 hearing, the Veteran testified that ruck sacks he carried on marches wore and tore his shoulders. He testified that he injured his right shoulder in the motorcycle accident. He testified that his right shoulder "healed, and everything is perfectly fine, they said they didn't want to do surgery because then something could really go wrong. So, they let it heal on its own and I have no issues in motorized skills with my shoulder or anything like that. But now it's back to the same problems that I was having before." In February 2021, the Board remanded the issue to schedule the Veteran for a VA shoulder examination and to obtain an opinion as to the nature and etiology of his claimed right shoulder injury. The Veteran underwent a VA shoulder examination in April 2021. The VA examiner noted the Veteran's right shoulder strain. The Veteran reported that he started experiencing symptoms while in service carrying 60-pound back packs and marching. He complained of pain in both shoulders and limited range of motion. Flare-ups of the right shoulder were described as pain - 8 out of 10 in intensity, occurring when stretching his arms. Range of motion of the right shoulder was limited to 150 degrees flexion, 160 degrees abduction, and 70 degrees internal rotation and external rotation. Pain was noted in all ranges of motion. The VA examiner determined that it was less likely than not that the Veteran's right shoulder disability was related to service. The VA examiner opined that a nexus to service was not established because the Veteran's medical records are silent for right shoulder condition and the Veteran mentioned he did not seek a medical evaluation while in service. The Board found this opinion was inadequate for adjudication purposes because it did not consider the Veteran's VA treatment records reflecting treatment for shoulder pain nor his hearing testimony in which he described experiencing shoulder pain that has continued since his time in service. The issue was remanded for an addendum opinion. An addendum opinion was obtained in August 2021. The VA examiner determined that it was less likely than not that the Veteran's right shoulder strain was related to his time in service. The VA examiner noted the Veteran reported onset of right shoulder pain due to wear and tear from marching and running while wearing rucksacks and/or shoulder injury sustained while playing basketball in service. The Veteran reported a post-service motorcycle accident during which he injured his right shoulder. The VA examiner noted that the STRs are silent for any right shoulder complaints, issues, evaluation, diagnoses, or treatment. The VA examiner stated that the Veteran's reported right shoulder complaints in service would be considered acute and transitory and resolving without residual. The VA examiner determined that "no objective evidence of residual or chronicity was found during military service including at the separation examination in 2007. The Veteran was able to successfully perform his duties as related to active military service. No immediate post service objective medical record evidence was found to indicate treatment for the presence of chronic/ongoing right shoulder pain/pathology was found." The VA examiner further noted that post-service treatment records were silent for right shoulder complaints or issues until the Veteran was involved in a motorcycle accident in June 2016. The Veteran sustained a right shoulder grade III AC joint separation as a result of the motorcycle accident. Although the Veteran has expressed his belief in a connection between his time in service and his claimed right shoulder disability, he lacks the knowledge and training required to render a nexus opinion on a cause and effect relationship unobservable to a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Simply put, while the Veteran can describe pains in service, he cannot associate them with current problems, especially not to the exclusion of the intercurrent injury. No medical professional has supported the Veteran's position. Direct service connection for a right shoulder disability must be denied because the competent evidence of record shows that this disability was neither caused nor aggravated by service; nor does it show that the Veteran experienced symptoms of the condition that continued from service until the present, despite current statements. There were no findings to support a right shoulder disability at the time of the Veteran's separation in October 2007. No injury, or report of such, is reflected in the record during service. Evidence of a right shoulder injury is not documented until the June 2016 VA treatment records, approximately 9 years after the Veteran's discharge from service. Additionally, the Board notes that the Veteran has not sought treatment for this condition at any time during the appellate period. Service connection for the Veteran's claimed right shoulder injury sprain is not warranted. There is no reasonable doubt to be resolved in this case. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, at 1 Vet. App. 49 (1990). Right Ankle Sprain The Veteran is seeking service connection for a right ankle sprain which he contends is related to his time in service. Service treatment records (STRs) dated May 5, 2006 reflect the Veteran sought treatment for an avulsion fracture left talus. The clinician at that time noted the Veteran had "prior ankle sprains but nothing severe enough to require treatment." STRs are negative for treatment for a right ankle sprain. No record of a right ankle disability is noted on the Veteran's separation physical examination. VA treatment records dated October 2014 reflect complaints of right ankle pain. A May 2015 treatment note reflects the Veteran reported experiencing multiple sites of joint pain, including right ankle which was resolved. A treatment record dated June 2016 indicates normal range of motion of ankles. At his December 2020 hearing, the Veteran testified that ruck marches and running with ruck sacks on contributed to his ankle issues. He testified that he sprained his right ankle in a motorcycle accident prior to serving in Iraq. The Veteran testified that he continues to experience weak and unstable ankles and has experienced such since service. In February 2021, the Boar remanded the issue to schedule the Veteran for a VA ankle examination and to obtain an opinion as to the nature and etiology of his claimed right ankle sprain. The Veteran underwent a VA ankle examination in April 2021. The VA examiner noted the Veteran experienced bilateral ankle sprain in 2008. The Veteran reported that he started experiencing symptoms after leaving the military. He complained of occasional left and right ankle pain and reported that he sprained both ankle several times marching and carrying heavy equipment during service. Subjective complaints included pain in both ankles. Flare-ups of the right ankle were described as pain - 10 out of 10 in intensity. Frequency depended on activities. Range of motion of the right ankle was limited to 40 degrees plantar flexion and 10 degrees dorsiflexion. No evidence of pain was noted. The VA examiner determined that it was less likely than not that the Veteran's right ankle disability was related to service. The VA examiner opined that a nexus to service was not established because the Veteran did not seek a medical evaluation for his claimed ankle sprains due to marching and carrying heavy equipment while he was in service. The Board found this opinion was inadequate for adjudication purposes because it did not consider the Veteran's treatment for ankle injuries documented in his STRs, his VA treatment records noting ankle pain, nor did it consider his hearing testimony in which he describe experiencing ankle pain that has continued since his time in service. The issue was remanded for an addendum opinion. An addendum opinion was obtained in August 2021. The VA examiner determined that it was less likely than not that the Veteran's right ankle sprain was related to his time in service. The VA examiner noted that the Veteran reported onset of right ankle pain due to multiple, lengthy rucksack marches, running during service and sprained ankle in Iraq (marching and running while wearing rucksacks and/or injuries sustained while playing basketball). The Veteran reported a post service motorcycle accident during which he injured his right ankle. The VA examiner noted that the STRs are silent for any right ankle complaints, issues, evaluation, diagnoses, or treatment. The VA examiner stated that the Veteran's reported right ankle complaints in service would be considered acute and transitory and resolving without residual. The VA examiner determined that "no objective evidence of residual or chronicity was found during military service including at the separation examination in 2007. The Veteran was able to successfully perform his duties as related to active military service. No immediate post service objective medical record evidence was found to indicate treatment for the presence of chronic/ongoing right ankle pain/pathology was found." The VA examiner further noted that post-service treatment records were silent for right ankle complaints or issues until the Veteran was involved in a motorcycle accident in June 2016. Although the Veteran has expressed his belief in a connection between his time in service and his claimed right ankle disability, he lacks the knowledge and training required to render a nexus opinion on a cause and effect relationship unobservable to a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). He lacks the education and training to associate remote in-service ankle pains with current findings. No medical professional has supported the Veteran's position. Direct service connection for a right ankle disability must be denied because the competent evidence of record shows that this disability was neither caused nor aggravated by service; nor does it show that the Veteran experienced symptoms of the condition that continued from service until the present, despite current statements. There were no findings to support a right ankle disability at the time of the Veteran's separation in October 2007. No injury, or report of such, is reflected in the record during service. Evidence of a right ankle sprain is not documented until the April 2021 VA contract examination, approximately 14 years after the Veteran's discharge from service. Additionally, the Board notes that the Veteran has not sought treatment for this condition at any time during the appellate period. Service connection for the Veteran's claimed right ankle sprain is not warranted. There is no reasonable doubt to be resolved in this case. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, at 1 Vet. App. 49 (1990). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Margaret M. Lunger, 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.