Citation Nr: 21070557 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 14-40 430 DATE: November 24, 2021 ORDER Entitlement to service connection for left shoulder disability is denied. REMANDED Entitlement to service connection for cognitive disability, to include Alzheimer's disease, is remanded. FINDING OF FACT The Veteran's current left shoulder disability did not have its onset in service and is not otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for left shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1954 to December 1955. These matters initially came before the Board of Veterans' Appeals (Board) from a March 2014 rating decision. The Veteran testified before the undersigned Veterans Law Judge at an October 2016 hearing and a transcript of the hearing is associated with his claims file. In March 2017 and September 2019, the Board remanded these matters for further development. Specifically, the Board instructed the agency of original jurisdiction (AOJ) to, among other things, ask the Veteran to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records, notify the Veteran that some of his service treatment records are unavailable and presumed destroyed and allow him an opportunity to submit any such records in his possession, obtain the Veteran's Social Security Administration (SSA) disability records, obtain any outstanding relevant private medical records and VA treatment records, afford the Veteran a VA shoulder examination, and obtain a medical opinion as to whether his claimed left shoulder disability is related to service. Pursuant to the Board's remands, in an April 2017 letter, the Veteran was notified that some of his service treatment records are unavailable and presumed destroyed and he was asked to submit any such records in his possession and to complete and submit an enclosed NA Form 13055. He submitted a completed NA Form 13055 later in April 2017. The AOJ contacted the National Personnel Records Center (NPRC) in August 2018 and December 2018 and requested outstanding service treatment records (including records of treatment for an accident in Germany that has been reported by the Veteran), but the NPRC responded in October 2018 and January 2019 that no such records were available because they were destroyed in a fire at the NPRC in 1973. In a May 2019 letter, the Veteran was notified that his service treatment records were unavailable and that any further attempts to obtain them would be futile, and he was asked to submit any such records in his possession. Moreover, the Veteran was asked to identify any outstanding treatment records and to complete the appropriate authorization form to allow VA to obtain any outstanding private medical records by way of the April 2017 letter and a September 2019 letter. Copies of the authorization forms (VA Forms 21-4142a and 21-4142) were included with the letters. The AOJ contacted the SSA in October 2020 and requested the Veteran's relevant outstanding disability records, but the SSA responded later that same month that such records were destroyed and that further efforts to obtain them would be futile. The Veteran was notified of this fact in a September 2021 letter and was asked to submit any SSA records in his possession. Also, all relevant outstanding VA treatment records were obtained and associated with the claims file, a VA shoulder examination was conducted in May 2017, and a medical opinion addressing whether the Veteran's claimed left shoulder disability is related to service was most recently obtained in October 2017. As explained below, the Board finds the October 2017 opinion to be adequate and of substantial probative value. Therefore, the AOJ substantially complied with the Board's pertinent remand instructions. See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). As for characterization of the issues on appeal, the Veteran had also perfected an appeal with regard to the issue of entitlement to service connection for tinnitus, and the Board remanded this matter in September 2019 for further development. The AOJ awarded service connection for tinnitus by way of a September 2021 rating decision, and thereby resolved the appeal as to this issue. Lastly, the AOJ included the issue of entitlement to a certificate of eligibility for an automobile and/or specially adapted equipment on a September 2021 supplemental statement of the case. However, this matter was already adjudicated in a final January 2021 Board decision. Therefore, the automobile/specially adapted equipment issue is no longer on appeal and no further discussion of this matter is warranted. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, air, or space service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection for left shoulder disability The Veteran contends that he has current left shoulder disability that is related to an injury in service when he was knocked unconscious by a falling electrical post. He has suggested that he experienced some left shoulder symptoms at that time. The question for the Board is whether the Veteran has current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board finds, for the following reasons, that, while there is evidence that the Veteran has current left shoulder disability, the claimed disability is not shown to have had its onset in service or to be otherwise related to a disease or injury in service. As an initial matter, the Board points out that some of the Veteran's service records are unavailable and are presumed to have been destroyed in a fire at the NPRC in 1973. Destruction of service records creates a heightened duty on the part of VA to consider the applicability of the benefit of the doubt, to assist the claimant in developing the claim, and to explain its decision. Cromer v. Nicholson, 19 Vet. App. 215 (2005). The report of the May 2017 VA shoulder examination reflects that the Veteran has been diagnosed as having left shoulder rotator cuff tendonitis. Thus, current left shoulder disability has been demonstrated. The Veteran contends that his current left shoulder disability is related to an injury in service when he was knocked unconscious by a falling electrical post, and it has been suggested that he experienced some left shoulder symptoms at that time. Regardless, even conceding the fact that he experiences current left shoulder disability and experienced left shoulder injury in service, the Veteran's claim must nevertheless be denied, as explained below. The Veteran has not reported, and the evidence does not otherwise reflect, that he has experienced a continuity of left shoulder symptomatology in the years since service. In this regard, his December 1955 separation examination was normal. Moreover, the evidence indicates that the current left shoulder disability did not manifest until years after service. In this regard, the first evidence of left shoulder disability following service is a March 2013 "Veteran's Application for Compensation and/or Pension" form (VA Form 21-526), on which the Veteran reported a left shoulder disability. There is no earlier evidence of any left shoulder problems following service. The absence of any evidence of left shoulder problems for over five decades after the Veteran's separation from active service in December 1955 is one factor weighing against a finding that his current left shoulder disability was present in service or in the year or years immediately after service. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc) (the Board may consider in its assessment of a service connection claim the passage of a lengthy period of time wherein the veteran has not complained of the malady at issue). Hence, neither the clinical record nor the lay statements of record establish a continuity of symptomatology with respect to the claimed left shoulder disability. In addition, the preponderance of the competent, probative opinions on whether there is a relationship between the Veteran's current left shoulder disability and service weigh against the claim. The physician who conducted the May 2017 VA shoulder examination opined that the Veteran's claimed left shoulder disability was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service. The examiner reasoned that the Veteran's left shoulder disability was age related and was not related to any event during service. His records did not show evidence of any shoulder injury during service. In October 2017, the physician who conducted the May 2017 VA examination re-reviewed the Veteran's claims file and opined that his claimed left shoulder disability was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service. The physician reasoned that the Veteran's left shoulder disability was age related and not service-related, taking into consideration his reported injury in service when he was hit by an electrical post and suffered transient injuries of his affected areas. His current left shoulder disability appeared years after service due to aging, and not due to trauma. There is no evidence of continuity of treatments in the years after service for any shoulder condition, so as to account for any service-related traumas causing any permanent damage to the shoulder. The May 2017 opinion is of little, of any, probative value because it is essentially solely based on the absence of evidence of treatment for left shoulder injury in the Veteran's available service treatment records, and it does not take into account the Veteran's reports of a left shoulder injury in service when he was hit by an electrical post. In this regard, a medical opinion is inadequate if it is based solely on the absence of documentation in the record and does not take into account the Veteran's reports of symptoms and history (even if recorded in the course of the examination). Dalton v. Peake, 21 Vet. App. 23 (2007). The October 2017 opinion, by contrast, is based upon an examination of the Veteran, a review of his treatment records, and consideration of his reported history, and it is accompanied by a specific rationale that is consistent with the evidence of record and which addresses the Veteran's reported left shoulder injury in service. Therefore, the October 2017 opinion is adequate and entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). Additionally, lay evidence may be competent on a variety of matters concerning the nature and cause of disability. However, the dispositive question presented in this case (i.e., whether any relationship exists between the Veteran's current left shoulder disability and service) is a question as to internal medical processes which extend beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). An opinion as to whether there is a link between the Veteran's current left shoulder disability and his shoulder injury in service (where there is no evidence of any left shoulder problems for decades following service) is one requiring specialized knowledge and testing to understand the complex nature of the body systems. The Veteran has not indicated that he has such experience. His opinion on the question of nexus is therefore not competent evidence in this instance. There is no other evidence of a relationship between the Veteran's current left shoulder disability and service, and neither he nor his representative have alluded to the existence of any such evidence. Thus, the preponderance of the evidence is against a finding that the Veteran's current left shoulder disability had its onset during service or is otherwise related to service. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and service connection for left shoulder disability is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for cognitive disability, to include Alzheimer's disease, is remanded. The evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the VA Caribbean Healthcare System and are dated to September 2021. Any VA treatment records are within VA's constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. Moreover, following a September 2021 supplemental statement of the case (SSOC), additional evidence has been associated with the Veteran's claims file by the AOJ that is relevant to the issue of entitlement to service connection for cognitive disability. This evidence includes the report of a November 2021 VA psychiatric examination and a November 2021 medical opinion addressing whether the Veteran's current cognitive disability is related to service. This relevant evidence has not been considered by the AOJ and no waiver of initial AOJ consideration of this evidence has been received. See 38 C.F.R. § 20.1305 (c). Hence, the Board is required to remand the issue of entitlement to service connection for cognitive disability for issuance of the necessary SSOC. The matter is REMANDED for the following action: 1. Obtain the Veteran's outstanding VA treatment records from the VA Caribbean Healthcare System for the period since September 2021; and all such relevant records from any other sufficiently identified VA facility. Additionally, any record obtained that includes any non-English language should be translated to English. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue of entitlement to service connection for cognitive disability. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a supplemental statement of the case that considers all additional relevant evidence received since the September 2021 supplemental statement of the case (including, but not limited to, the report of the November 2021 VA psychiatric examination and the November 2021 medical opinion) and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Elwood, 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.