Citation Nr: 21072895 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 17-46 184 DATE: December 6, 2021 ORDER Entitlement to service connection for degenerative arthritis of the right shoulder is denied. Entitlement to service connection for a right ankle disability is denied. FINDINGS OF FACT 1. The Veteran's degenerative arthritis of the right shoulder (hereinafter right shoulder disability) was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 1. The preponderance of the evidence is against finding that a right ankle disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. 1. The criteria for service connection for a right ankle disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1979 to July 1987, from June 1992 to June 1994, and from January 2003 to January 2004 with continued service in the reserves until 2014. These matters are on appeal to the Board of Veterans' Appeals (Board) from a January 2015 rating decision. The claims were remanded by the Board in April 2019, along with several other issues, to make further attempts to obtain service treatment records (STRs) and obtain VA examinations and opinions. Following this development, service connection was granted for a right knee disability and left shoulder disability in an August 2021 rating decision. As this constitutes a full grant of the benefit sought, those issues are no longer on appeal. In a September 2021 supplemental statement of the case, the right shoulder and right ankle claims were again denied, and the claims have returned to the Board. At the outset, the Board finds that the April 2019 remand directives have been substantially complied with. The file shows that the Agency of Original Jurisdiction made several attempts to obtain STRs from the Veteran's last period of active service from January 2003 to January 2004 and made a formal finding of unavailability documented in the file. In cases where the STRs are unavailable, here is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). As such, the Board's analysis has been undertaken with the heightened obligation set forth in Cuevas and O'Hare in mind, though the Veteran has not contended that he received treatment for either disability during that period of service. SERVICE CONNECTION Active military, naval, or air service includes active duty as well as any period of active duty training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty. See 38 U.S.C. § 101 (24); 38 C.F.R. § 3.6 (a). Active military, naval, or air service also includes any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. Id. Accordingly, service connection may be granted for disability resulting from disease or injury incurred in, or aggravated, while performing ACDUTRA or from injury (but not disease) incurred or aggravated while performing INACDUTRA. The claimant bears the burden of establishing Veteran status during periods of ACDUTRA or INACDUTRA. See, e.g., Donnellan v. Shinseki, 24 Vet. App. 167, 174-75 (2010). In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in-service disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the instant case, x-ray reports of the right shoulder show degenerative changes (arthritis); thus, presumptive service connection could potentially be applicable as to that claim since arthritis is listed as a chronic disease under 38 C.F.R. § 3.309 (a). For the showing of chronic disease in service there is required 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 or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). Under 38 C.F.R. § 3.303 (b), service connection may be established by demonstrating continuity of symptomatology. Continuity may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Degenerative arthritis of the right shoulder The Veteran contends his right shoulder arthritis, diagnosed by x-ray in December 2020, was incurred during his 35 years of active and reservist service, or was otherwise aggravated by periods of active service or inactive duty for training. In the available STRs, the Veteran did not complain of symptoms or receive treatment for the right shoulder in his multiple periodic medical examinations and treatment visits until March 2012, when he reported pain in the bilateral shoulders since 2003. A November 2003 post-deployment health assessment shows the Veteran indicated "yes" for swollen, stiff, or painful joints and back pain. However, a 2003 retention report of medical examination showed a self-report of mild osteoarthritis in the knees, but no other musculoskeletal issues. In a 2003 report of medical assessment, he noted left shoulder, left knee, and low back problems, but no right shoulder issues. In a May 2017 letter from the Veteran's treating nurse practitioner, she endorsed the Veteran's complaints of bilateral shoulder pain starting in 2012, and the resulting difficulty with his military physical demands. In a June 2017 VA examination for the Veteran's left shoulder, abnormal range of motion of the right shoulder was also indicated; however, no opinion on its onset or nexus to service was rendered. In a December 2020 VA examination, the examiner noted the 2020 diagnosis of acromioclavicular joint osteoarthritis. The Veteran stated that he injured his right shoulder in obstacle course training in 1993. The examiner opined that the right shoulder disability was less likely than not caused by service. The Veteran did not complain during active service or shortly after discharge. Moreover, osteoarthritis of the acromioclavicular (AC) joint is most common in middle aged people and develops when the cartilage in the AC joint begins to wear out, causing pain on use. The principal cause of AC arthritis is wear and tear due to use. As a person uses their shoulder, stress is placed on the joint, which produces wear and tear on the cartilage, leading to wear over time and the onset of arthritis. People who must use their arms for extended periods of time are susceptible to AC joint arthritis. Given this, the examiner was unable to establish a chronic shoulder condition either caused or incurred by service. The examiner further opined it was less likely than not that arthritis began during active service, manifested one year after discharge, or was noted during service with continuity of the same symptomology since. He explained there were no diagnostic findings of arthritis of any of the claimed conditions during service. Arthritis cannot be diagnosed on a clinical examination alone but must be made with findings of degenerative changes noted on diagnostic studies such as x-ray, MRI, or CT scans, and there were no such findings. In an August 2021 addendum opinion, a new examiner reviewed the records and also concluded that it was less likely that the Veteran's right shoulder arthritis began during active service, manifested within one year of discharge from service, or was noted during service with continuity of symptoms since. He explained that with consideration given for the weight of the available records, history as reported by the Veteran, recent examination, objective studies, and previously rendered opinion, there is simply insufficient evidence found or compelling anamnesis of the right shoulder to support the genesis of his shoulder diagnoses were incident to any event in service with any clinical certainty. The dearth of the records did not allow a favorable conclusion without resorting to mere speculation. Had the right shoulder been problematic or chronic in nature, it would most certainly have been reflected given he had the contralateral limb documented and examined with a diagnostic conclusion. In response to a request for clarification, the examiner later reiterated that he reviewed all the evidence and his answer remained unchanged. There is no indication from the STRs of an injury or onset of arthritis in service, nor is there evidence of an injury in the line of duty during a period of ACDUTRA or INACDUTRA. Nor is there evidence of a condition noted in service with continuing symptoms since. While the Board acknowledges the Veteran's medical expertise, his varied statements regarding onset of pain in hindsight are at odds with his failure to report such pain at the time, limiting their probative value. On one occasion, he reports onset in 1993 during training, yet there is no documentation of this injury. On another occasion, he endorses onset in 2003, but other medical evaluations from 2003 do not reflect complaints of right shoulder pain. As stated above, the Veteran underwent numerous medical evaluations throughout his several decades in service, and he has received consistent private treatment for several other conditions, including musculoskeletal. He did not receive treatment for right shoulder pain until 2012, and he did not receive a diagnosis until 2020. The Veteran has explained that, as a physician, he often did not seek treatment or would get informal advice from fellow medical colleagues. He also explains in correspondence that his left shoulder was worse than his right, which may explain the many instances of treatment for his left shoulder but not his right. The Board finds these to be plausible explanations; however, the preponderance of the evidence remains against his claim. The Board finds that the VA opinions, collectively, are probative. In particular, the December 2020 examiner explained the principal cause of the AC arthritis that the Veteran was diagnosed with, indicating it is more likely that his arthritis was age-related due to wear and tear over time. Both examiners reviewed the medical records and the Veteran's reported history and provided a detailed rationale to support their medical conclusion. The Veteran's initial report of pain in 2012 occurred while he was serving in the reserves. However, there is no indication of an injury, or an aggravation of injury, in the line of duty while on ACDUTRA or INACDUTRA. Altogether, the Board has considered both the favorable and unfavorable evidence of record and concludes that the preponderance of the evidence is against an onset in service, manifestation within a year of active service, aggravation by a period of service, or chronicity since service. The Veteran's claim must be denied. The Board has also considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Right ankle disability The Veteran contends his right ankle disability, diagnosed as tendonitis in 2020, was incurred during his 35 years of active and reservist service, or was otherwise aggravated by periods of active service or inactive duty for training. In the available STRs, the Veteran did not complain of any right ankle problems in his multiple periodic medical examinations and treatment visits. In a May 1991 physical examination, an ankle scar was noted; however, an accompanying note in the document indicates it is in reference to the left ankle. In the private treatment records, several documents reference pain in the right lower extremity due to venous insufficiency issues and varicose veins with edema. However, none of the records specifically endorse musculoskeletal pain in the right ankle or give any indication that the Veteran was experiencing symptoms of his now diagnosed tendonitis. X-rays conducted in December 2020 showed a minor osteochondral lesion of the medial corner of the talar dome. Otherwise, the images were unremarkable. In a December 2020 VA examination, the Veteran endorsed onset of right ankle pain in 1992 or 1993. The examiner opined it was less likely than not that the Veteran's right ankle disability was related to service. The Veteran did not have any complaints or prior history of an ankle condition on enlistment, and there were no STRs reflecting complaint of ankle pain during active service or shortly following discharge from active service. The x-ray findings were suggestive of tendonitis and showed a small, subtle osteochondral lesion in the right ankle. However, he was unable to establish a chronic right ankle condition that was either incurred or caused due to active service. In an August 2021 addendum opinion, a new examiner opined it was less likely than not that the right ankle condition was incurred in service. With consideration given for the weight of the available records, history as reported by the Veteran, recent examination, objective studies, and previously rendered opinion, there is simply insufficient evidence found or compelling anamnesis of the right ankle to support the genesis of his tendonitis or OCD lesion of the ankle was incident to any event of service with any clinical certainly. The dearth of records do not allow a favorable conclusion without resort to mere speculation as the causes and onset. In response to a request for clarification, the examiner later reiterated that he reviewed all the evidence and his answer remained unchanged. The Veteran has explained that, as a physician, he often did not seek treatment or would get informal advice from fellow medical colleagues. The Board acknowledges the Veteran's medical profession and expertise and finds this to be a plausible explanation; however, the preponderance of the evidence is against his claim. While the Veteran reported onset of pain in approximately 1992 or 1993, in his June 1992 physical examination report he indicated "no" to swollen or painful joints, and he made no mention of right ankle pain, though he noted other medical issues. In his June 1994 separation examination, he again indicated "no" to swollen or painful joints, and made no mention of right shoulder pain, though he noted other medical issues. While the Board accepts the Veteran's explanation for why he did not actively seek medical treatment at the time, these explicit reports of no painful joints at the time of reported onset limits the probative value of his statements. As the Veteran's statements regarding onset of pain have been deemed to be of low probative value, there is no other favorable evidence in support of his claim. The treatment records do not show evidence of his disability until several years after service. The VA opinions, collectively, are probative. While they both rely heavily on the absence of evidence of in-service treatment, both examiners reviewed the medical records and the Veteran's reported history, and provided clear and logical medical conclusions, allowing the Board to reach a decision based on the totality of the evidence. Altogether, the Board has considered both the favorable and unfavorable evidence of record and concludes that the preponderance of the evidence is against an onset in service, manifestation within a year of active service, or aggravation by a period of service. The Veteran's claim must be denied. The Board has also considered the benefit-of-the-doubt rule; however, since a preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Carroll, 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.