Citation Nr: 21070091 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 16-40 342 DATE: November 23, 2021 ORDER Entitlement to left shoulder condition, to include as secondary to service-connected right shoulder condition is denied. FINDING OF FACT The Veteran's left shoulder condition did not have onset in service and is not otherwise related to active duty; and is not caused or aggravated by service-connected right shoulder strain with bicipital tendonitis; and did not manifest within the first post service year. CONCLUSION OF LAW The criteria for service connection for a left shoulder condition have not been met. 38U.S.C. §§1110, 1112, 5107; 38C.F.R. §§3.102, 3.303, 3.307, 3.309(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 2009 to November 2013. This claim comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision issued by a RO of the United States Department of Veterans Affairs (VA). The Veteran presented testimony before the undersigned Veterans Law Judge at a February 2019 Board hearing. A copy of the hearing transcript has been associated with the electronic claims file. This matter was last before the Board in May 2021 at which time it was remanded for further evidentiary development. A review of the record shows that there has been substantial compliance with the remand directives, and neither the Veteran nor his representative have alleged otherwise. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board may proceed with its appellate consideration. Entitlement to left shoulder condition is denied. The Veteran seeks service connection for a left shoulder disability, to include as secondary to service-connected right shoulder condition. For the reasons discussed below, the Board finds that service connection is not warranted for a left shoulder disability. Generally, to establish service connection 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." 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 injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38C.F.R. §3.303 (d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include arthritis, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38U.S.C. §§1101, 1112, 1113, 1137; 38C.F.R. §§3.303, 3.304, 3.307, 3.309(a). For arthritis, the disease must have manifested to a degree of 10 percent or more within one year of service. 38C.F.R. §3.307 (a)(3). If there is no manifestation within one year of service, service connection for a recognized chronic disease can still be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38C.F.R. §§3.303 (b), 3.309. Continuity of symptomatology requires that the chronic disease have manifested in service. 38C.F.R. §3.303 (b). In-service manifestation means a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service connected unless attributable to an intercurrent cause. 38C.F.R. §3.303 (b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. Further, service connection may be established on a secondary basis for a disability which is proximately caused by or aggravated by a condition tor which service connection has already been established. 38 C.F.R. § 3.310. Temporary or intermittent flare-ups of symptoms of a condition, alone, do not constitute sufficient evidence aggravation unless the underlying condition worsened. Cf. Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38U.S.C. §1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12Vet. App.453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). VA treatment records reveal that the Veteran has been diagnosed with left shoulder rotator cuff tendonitis with minimal degenerative changes. Therefore, a current disability is shown, and the first element of direct service connection is met. As to an in-service incurrence, the Veteran's service treatment records (STRs) reflect complaints of bilateral shoulder pain resulting from a motorcycle accident which occurred while commuting in the line of duty. Upon separation, the Veteran reported bilateral shoulder pain with resistance, and revealed limited range of motion of the shoulders bilaterally. A diagnosis of bilateral shoulder pain was noted. See September 2013 Separation Examination. Accordingly, this element has been satisfied. In light of the above, regarding direct service connection, the only remaining inquiry is whether there is a nexus between the Veteran's current left shoulder condition and his August 2013 motorcycle accident. In this regard, the medical evidence of record includes the April 2014 VA shoulder/arm examination, in which the Veteran was not diagnosed with a left shoulder disability and range of motion was normal in the left shoulder. Private chiropractic records from 2015 to January 2017 show no treatment for any shoulder complaints or conditions. February 2017 primary treatment reports mention a history of recurrent left shoulder pain and dislocations VA treatment records from December 2017 document complaints of left shoulder pain, and contain magnetic resonance imaging showing anterior glenolabral articular disruption with an anterior labral tear, some chondral fissuring, and minimal glenohumeral and AC joint arthritis. See also December 2017 radiograph showing subchondral irregularity of the distal clavicle. A private medical opinion from a chiropractor was received in January 2019 which stated that the Veteran had orthopedic symptomatology of the shoulders related to his active-duty service. The Board finds this medical opinion to be conclusory and unsupported by an explanatory rationale. Thus, it has no probative value and cannot resolve the Veteran's appeal. In November 2020, the RO obtained a VA medical opinion addressing whether the Veteran's left shoulder disability was incurred during service, or was otherwise secondary to his service-connected right shoulder disability pursuant to 38 C.F.R. § 3.310. The VA examiner issued a negative opinion on direct service connection. The VA examiner acknowledged the Veteran's in-service motorcycle accident and stated that he took the brunt of the fall to his right side, to include his right shoulder, elbow, and knee. The VA examiner stated that the Veteran complained of bilateral shoulder pain at service separation, but the exam was normal. It was not until a magnetic resonance image in 2017 that the Veteran exhibited left shoulder pathology. The VA examiner stated the 4-year gap between separation and the first objective radiologic evidence of left shoulder disability, weighed against medical nexus. The Board has reviewed the record and finds this medical opinion to be based on an inaccurate factual premise. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) ("An opinion based upon an inaccurate factual premise has no probative value."). Contrary to the VA examiner's statements, the September 2013 exit examination documented more than the Veteran's lay reports of bilateral shoulder pain. The clinical evaluation of the left shoulder was not normal, as the VA examiner alleged. Instead, it clearly documented limited range of motion in the bilateral shoulders and pain with resistance. Thus, this opinion is not probative in deciding the Veteran's claim. Regarding secondary service connection, the November 2020 VA examiner also denied a nexus. The VA examiner stated that the Veteran's left shoulder injury was of a greater magnitude and severity than what would be observed had it simply been the result of wear and tear due to favoring the left shoulder over the service connected and injured right shoulder. While the Board finds this opinion to be adequate and supported by a plausible explanation, the VA examiner did not provide an opinion on secondary aggravation as required by 38 C.F.R. § 3.310(b). See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (a secondary service connection medical opinion is insufficient when it fails to adequately address the question of aggravation). However, considering the sufficiency of the opinion provided, the opinion is considered narrowly probative. See Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (a medical report must be read as a whole in the context of the claim and, even an opinion lacking in detail may be provided some probative value based upon the amount of information and analysis contained therein) Pursuant to the May 2021 remand, the RO obtained an addendum opinion. The June 2021 examiner opined that the Veteran's left shoulder condition was less likely than not incurred in or caused by service, to include his August 2013 motorcycle injury. The rationale explains that the Veteran's treatment records pertaining to the August 2013 motorcycle accident do not reveal a severe injury to the left shoulder that would explain the current left shoulder diagnosis. Instead, the injury report, and subsequent treatment records, show a significant right shoulder injury, with no indication of left shoulder trauma. The examiner went on to remark that although the September 2013 separation examination notes limited range of motion bilaterally, subsequent VA treatment records right after separation are silent to any chronic underlying left shoulder condition as a result of a motorcycle accident. The examiner further explained that VA treatment records from 2014-2015 show no significant impairment of the left shoulder. For instance, the Veteran was seen by a physical therapist and the shoulder issues were noted to be stable. Moreover, the physical therapy treatment reports also note the Veteran's report that he consistently lifts weights. This admission in and of itself, the examiner purported, indicates the lack of a left shoulder condition during this time. The opinion went on to highlight the fact that treatment records from 2015-2016 are silent for left shoulder treatment. Not until February 2017 is there mention of a history of recurrent left shoulder pain and dislocation. However, because this history was not documented during the physical therapy treatment in 2015, this suggests the left shoulder history of pain and dislocations are recent. The examiner also opined that the MRI findings of the left shoulder are more consistent with overuse rather than from injury from a motorcycle accident 4 years prior, especially given the fact that the complaint of recurrent dislocation was not present in previous examinations or in service. Therefore, because the Veteran has a history of lifting weights, and the complaint of dislocation of the left shoulder was noted to be in association of lifting anything heavy, the Veteran's current left shoulder condition is more consistent with wear and tear from overuse related to heavy lifting. Concerning secondary service connection, the examiner opined that the Veteran's treatment records from 2014 - 2015 show no significant increase in disability of the left shoulder that could be related to the service-connected right shoulder. The examiner highlighted the fact that the Veteran's shoulders were noted to be stable during this period, and there is also no indication the right shoulder worsened such that more reliance was placed on the left shoulder. Moreover, private treatment records reveal the Veteran lifts weights as exercise often, which would not suggest worsening of either shoulder. Although the Veteran complained of left shoulder pain and recurrent dislocation in February 2017, there is no indication Veteran's right shoulder was a factor in causing these symptoms. Ultimately, the examiner found that treatment records pertaining to the left shoulder failed to support or show objective evidence of any increase in disability, regardless of permanence, due to the Veteran's service-connected right shoulder disability. In light of the forgoing, the Board finds that entitlement to service connection for left shoulder condition is not warranted. Initially, while the Veteran has been found to have minimal degenerative changes of the left shoulder joint, there is no evidence of record showing that such was manifest to a compensable degree within a year of the Veteran's separation from active service. In fact, the April 2014 VA shoulder/arm examination report, taken not long after the Veteran's separation from service, showed no left shoulder diagnosis and noted normal range of motion following appropriate tests and examination. As such, presumptive service connection is not applicable in this case. Moreover, the preponderance of evidence is against a finding that the nexus element has been met for direct service connection. As discussed above, there is no probative medical opinion of record linking the Veteran's current left shoulder condition to any in service injury, to include the August 2013 motorcycle accident. At the outset, the Board finds that the June 2021 VA opinion thoroughly reviewed and discussed the relevant evidence, considered the contentions of the Veteran, and provided thorough supporting rationale for the conclusions reached. Barr v. Nicholson, 21 Vet. App. 303 (2007). Thus, the Board finds the opinion to be persuasive and assigns it high probative value. With that said, as the June 2021 VA examiner declined to provide a positive nexus opinion, the third element to establish service connection has not been met. Accordingly, direct service connection for left shoulder condition must be denied. Concerning the issue of continuity of symptomatology, the evidence before the Board does not reveal continuing symptomology since service. The April 2014 VA examination, administered right after the Veteran's separation from service, noted no left shoulder diagnosis and revealed no loss of range of motion. Moreover, private chiropractic records from 2015 to 2017 show no treatment for any shoulder complaints or conditions. Not until February 2017 do VA treatment records mention a history of recurrent left shoulder pain and dislocations. The June 2021 VA examiner opined that the MRI findings of the left shoulder are more likely consistent with overuse rather than from injury from a motorcycle accident 4 years prior, especially given the onset of and complaint of recurrent dislocations which was not present in previous examinations. The evidence thus does not establish a nexus based on continuity. See 38 C.F.R. § 3.303 (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Board also finds that service connection is not warranted on a secondary basis. The Board finds the probative VA opinions of record, when taken together, to be highly persuasive to the issue of whether the Veteran's right shoulder condition caused or aggravated the Veteran's left shoulder condition. Specifically, the November 2020 VA opinion and June 2021 VA opinion, when viewed cumulatively, opined that the Veteran's left shoulder condition was less likely as not caused or aggravated by his service-connected right shoulder condition. The Board places great probative weight on these VA opinions as they are consistent with the evidence of record and based upon medical knowledge and skill, as well as a review and analysis of the Veteran's specific disability picture. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Therefore, based on the foregoing, the Board finds that service connection for a left shoulder condition, is not warranted on a direct or secondary basis. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Russell, Tangela 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.