Citation Nr: 21070458 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 18-15 519 DATE: November 24, 2021 ORDER Entitlement to service connection for a bilateral shoulder condition is denied. FINDING OF FACT A bilateral shoulder condition is not causally or etiologically due to service and did not have an onset within one year of discharge from service. CONCLUSION OF LAW The criteria for entitlement to service connection for a bilateral shoulder condition have not been met. 38 U.S.C. §§ 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1972 to February 1976, and from February 1976 to July 1982. This matter comes before the Board of Veterans' Appeals (Board) following a February 2020 Board remand. This matter was originally on appeal from a September 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2020, the Veteran testified before the undersigned at a Board hearing. A copy of the transcript has been associated with the claims file. Service Connection Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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, or nexus, 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). If a pre-existing disability is noted upon entry into service, then the Veteran cannot bring a claim for service connection for that disability, only a claim for service-connected aggravation of that disability. To be noted within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304 (b); see 38 U.S.C. § 1111; Crowe v. Brown, 7 Vet. App. 238, 245 (1994). A pre-existing disability will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. The claimant bears the burden of showing aggravation. Service connection may also be granted for listed chronic diseases, such as arthritis, if such were shown as chronic in service; manifested to a compensable degree within a presumptive period (usually one year) after separation from service; or were noted in service with continuity of symptomatology since service 38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). 1. Entitlement to service connection for a bilateral shoulder condition The Veteran contends his bilateral shoulder condition is related to service, specifically that his shoulder condition is due to carrying heavy loads. The Veteran's service treatment records (STRs) show that in a May 1973 Report of Medical History, the Veteran reported he did not have a painful or "trick" shoulder or elbow but reported he had swollen or painful joints. In the Veteran's January 1976 re-enlistment examination, the examiner reported the Veteran's upper extremities were normal. In a January 1976 Report of Medical History, the Veteran reported he did not have a painful or "trick" shoulder or elbow. In the Veteran's August 1979 annual evaluation, the examiner reported the Veteran's upper extremities were abnormal. In the Veteran's May 1982 separation exam, he reported swollen or painful joints, arthritis, and recurrent back pain in the Report of Medical History. The Veteran denied a painful or "trick" shoulder or elbow. At the January 2020 Board hearing, the Veteran testified that from the time he left service his shoulders became very high maintenance. The Veteran stated that his military occupational specialty (MOS) required the operation maintenance and overhaul of very large and heavy equipment, steam plants, and a myriad of different pumps and exchangers, air system components, both on surface ships and submarines. The Veteran contends that his MOS required him to use his shoulders, back, and spine to move the equipment. The Veteran stated that through cause and effect his bilateral shoulder condition has been contributed to and is a product of previously recognized service-connected conditions, such as his back condition. In June 2016, the Veteran submitted a statement by a fellow Veteran. D. B. stated that he has witnessed the Veteran's deterioration of his mobility. The Veteran was physically fit and outgoing but now is very limited in his activities. In an April 2015 private treatment record, the examiner reported the Veteran complained of left shoulder pain and that he had no recent trauma. The examiner noted a diagnosis of left shoulder rotator cuff tendonitis. In a September 2014 private treatment record, the examiner noted a diagnosis of subdeltoid bursitis, left shoulder. In addition, the examiner noted that x-rays in AP and outlet view of the left shoulder he interpreted as being normal for the Veteran's age group. In a November 2015 private treatment record, the examiner noted the Veteran had a history of shoulder tendinitis and had previously had surgery on his shoulder. In a February 2018 private treatment note, Dr. M.B. reported that the Veteran was under his care for bilateral shoulder pain, and the Veteran had a prior history of left rotator cuff injury and had undergone a left rotator cuff repair. Further, the Veteran had right shoulder impingement. The examiner noted the Veteran described heavy-demand work through the military when he was on a submarine in the 1970s, where he was required to lift excessive amounts of weight and he feels that his continued shoulder problems are a result of his service. The examiner stated, "this can certainly play a factor in his continued pain and present situation." The February 2020 Board remand found the February 2018 medical opinion inadequate to evidence a nexus between the Veteran's service and his specific current shoulder condition because the examiner did not definitively state that the Veteran's current disability is due to or related to his service. By stating the Veteran's duties in service "can certainly play a factor," the physician's statement is not definitive regarding a causal connection between the Veteran's shoulder condition and his service. The Board remand directed the AOJ to afford the Veteran a VA examination for his bilateral shoulder condition by an orthopedic physician (M.D.). In March 2020, the Veteran was afforded a VA examination. The examiner noted a diagnosis of left rotator cuff tendonitis status post left shoulder total replacement. Both shoulders evidenced abnormal range of motion and pain causing functional loss. The examiner noted no shoulder diagnosis or treatment while in service, no specific traumatic injury or diagnosis while in service. The examiner also stated there was no medical treatment records for shoulders while in service on her review, per buddy statements and per Veteran's history. The examiner also noted lack of chronicity and consistency of shoulder complaints from military discharge until 2014. Additionally, the examiner noted that there was no medical evidence for bilateral rotator cuff repair located for 2005 as reported by the Veteran located. The examiner stated in her opinion the major factor is "age and wear and tear." The examiner opined the Veteran's bilateral shoulder condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Additionally, she noted that routine and exit physical exams are silent for shoulder complaints. The examiner also noted lack of chronicity and consistency of shoulder complaints from military discharge until 2014. The examiner referenced the February 2018 opinion and stated in her opinion the major factor is "age and wear and tear," noting the September 2014 examiner indicated that x-rays in AP and outlet view of the left shoulder were interpreted as being normal for the Veteran's age group. However, the March 2020 examination indicated it was signed by a nurse practitioner (NP). The February 2020 Board remand directed the AOJ to provide the Veteran with a medical opinion by an orthopedic physician (M.D.). In August 2020 the Veteran was provided an addendum opinion by a physician (M.D.). The examiner opined the Veteran's bilateral shoulder conditions less likely than not had their onset during the Veteran's service or is causally or etiologically due to service. The examiner stated upon exhaustive review of the STRs, the examiner was unable to find any injury, complaint, or documentation of problems with either shoulder. The separation exam is silent for shoulder problems. The examiner also stated, considering the Veteran's lay statements regarding the impact of his in-service duties, it is understandable that he associates his current problem with the intensive training in service; however, the Veteran worked until 2014, as per SS documentation, and at the beginning most of the work was physical, where he needed to lift from 25 to 100 pounds (sometimes more as documented in SS documents), which would not be possible to do for years if the Veteran had chronic bilateral shoulder issues since service (last period separation in 1982). Further, the examiner stated that Dr. M.B. opined that the demands of lifting excessive amounts of weight during service play a factor in his present situation; however, the examiner stated she respectfully disagrees with him due to the gap between complaints of problems in the shoulder, but most of all the ability of working in a physically demanding job as a civilian after separation. The examiner noted the Veteran's first surgery on his shoulder is documented in 2004 (by history, as she was unable to find any surgical report), and the contralateral shoulder in 2005, and further complaints are documented in 2014 in private records. In 2017 the Veteran had pain in March 2017. X-rays showed a spur, which a caused rotator cuff injury, and the Veteran underwent surgery in September 2017. The Veteran underwent total shoulder replacement on the left side in 2019. The examiner stated, however, as explained before, it is very unlikely that this is related to service and most likely related to his civilian occupation, or natural aging. In an October 2020 statement, in reference to the VA opinions, the Veteran stated he offered the VA examiner a copy of his post-service work history and the examiner stated it was not necessary. He maintained that how can the examiner "state what is not known." The Board notes the Veteran's file includes records furnished by the Social Security Administration that include his work history. The VA opinion indicates his file was reviewed. The Veteran's work history shows he was a general laborer from August 01, 2006 to May 25, 2008 for a construction or leak gang. The record indicates strength as heavy. The Veteran also stated, Dr. M.B. reviewed his work history before he aligned a statement saying more than likely occurred in service. He stated, Dr. M.B. "cognitively weighed out the probability as opposed to assuming what another thought may have occurred." As stated above, the Board notes the February 2020 Board decision found Dr. M.B.'s opinion inadequate because he did not definitively state that the Veteran's current disability is due to or related to his service. By stating the Veteran's duties in service "can certainly play a factor," the physician's statement is not definitive regarding any causal connection between the Veteran's shoulder condition and his service. Moreover, while the opinion reported on the Veteran's current contentions, the opinion failed to otherwise account for the physical condition of the shoulders and contemporaneous statements made by the Veteran as reflected in the STRs, and the Veteran's post-service work. Therefore, this opinion is unpersuasive and given little probative weight. The only remaining contrary opinion comes from the Veteran himself. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. The Board finds the August 2020 VA opinion to be highly probative, as it was authored by an individual who possesses the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). This opinion is based on review of the record and addresses the Veteran's claim. It addresses the Veteran's lay statements regarding the impact his in-service duties had on his shoulders and addresses the February 2018 private medical opinion by Dr. M.B. As stated above, the examiner noted the Veteran worked until 2014, as per social security documentation, and at the beginning most of the work was physical, where he needed to lift from 25 to 100 pounds (sometimes more as documented in SS documents), which would not be possible to do for years if the Veteran had chronic bilateral shoulder issues since service. Further, the examiner noted she respectfully disagrees with Dr. M.B., due to the gap between complaints of problems in shoulder, but most of all the ability of working in a physically demanding job as civilian after separation. The VA opinion has informed the Board's understanding of the medical feasibility of the Veteran's lay statements. The examiner has essentially explained with supporting rationale that the claimed mechanism of injury is generally inconsistent with medical knowledge or implausible with respect to the specific particular facts of the Veteran's claim. Lastly, the Veteran denied a painful or "trick" shoulder or elbow at separation. Post-service treatment records indicate the Veteran's complaint of shoulder pain began more than 20 years after service. There is no persuasive medical evidence or persuasive credible lay evidence that the Veteran's claimed disorder manifested to a compensable degree within a year of his separation from service or had its onset in service and continued ever since service. Therefore, service connection based on presumptive service connection for a chronic disease or based on a theory of continuity of symptomatology is not warranted. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Daley, 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.