Citation Nr: 21073822 Decision Date: 12/10/21 Archive Date: 12/10/21 DOCKET NO. 17-64 628 DATE: December 10, 2021 ORDER Entitlement to service connection for right shoulder strain is granted. Entitlement to service connection for a right ankle disability is denied. FINDINGS OF FACT 1. The Veteran's right shoulder strain is etiologically related to service. 2. The Veteran's right ankle disability is not etiologically related to service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for right shoulder strain have been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria to establish service connection for right ankle degenerative arthritis have not been met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1979 to September 1979. He also served with the Army National Guard of Illinois from May 1979 to May 1982. After his National Guard service, the Veteran was assigned to the Army Reserve from May 1982 to February 1986. The Veteran appealed an April 2015 rating decision by the Agency of Original Jurisdiction (AOJ). A Board of Veterans' Appeals (Board) hearing was held in November 2020. A transcript is of record. In January and June 2021, the Board remanded the Veteran's claims to the AOJ for further action consistent with the Board's remand directives. The claims are back before the Board for further appellate proceedings. The Board finds there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A veteran is entitled to Department of Veteran Affairs (VA) disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. § 1131. Generally, to establish a right to compensation for a present disability, a veteran must show: (1) a present disability; (2) an 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, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). The term "active military, naval, or air service" includes: (1) active duty; (2) any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty; and (3) any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C. § 101(2), (24); 38 C.F.R. § 3.6(a). ACDUTRA includes full-time duty with the Army National Guard of any State under sections 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. See 38 U.S.C. § 101(22)(C); 38 C.F.R. § 3.6(c). INACDUTRA includes service with the Army National Guard of any State (other than full-time duty) under section 316, 502, 503, 504, or 505 of title 32, or the prior corresponding provisions of law. See 38 U.S.C. § 101(23); 38 C.F.R. § 3.6(d). Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c). INACDUTRA includes duty prescribed for the Reserves. 38 U.S.C. § 101(23)(A). The Reserves include the National Guard of the United States. 38 U.S.C. § 101(26), (27). Duty, other than full-time duty, performed by a member of the National Guard of any State, is considered to be INACDUTRA. 38 C.F.R. § 3.6(d)(4). 1. Right Shoulder The Veteran is diagnosed with right shoulder strain. See October 2021 examination report. The Veteran noted that his right shoulder issue started in July 1983. See July 2010 VA Form 21-526. The Veteran stated in October 2015 that in 1983, during summer camp, he fell off a truck and hit his shoulder. See also November 2020 Board Hearing Tr. at 5-6. Specifically, the Veteran stated that in 1982 it was raining and that he climbed to the top of the tank and slipped and hit his shoulder, but did not go to the hospital. See October 2015 notice of disagreement (NOD). The Veteran contends that he fell off a tank and hit his right shoulder in the early 1980s during summer camp. This would be at some point during the Veteran's Reserve service. Granted the Veteran was working with tanks, the Board finds the period in question must have been at least during a period of INACDUTRA. The Veteran is competent to attest to falling off of a tank during service. The Board finds the Veteran's statements credible. As such, the second Shedden element is satisfied. As to nexus, Dr. T.C.'s January 2012 letter noted the Veteran's reports of having right shoulder problems in the military after being pulled off a truck and landing onto the right side, sustaining a shoulder injury. The October 2021 examiner noted the Veteran's statement that his right shoulder condition started in 1984 when he jumped off a truck and fell and hit his right shoulder. Nexus opinions were rendering in October 2021. The opinions widely focused on the lack of medical evidence regarding right shoulder pain treatment. Therefore, given the time lapse, the examiner did not find the Veteran's right shoulder condition service connected. However, the examiner did not pinpoint an exact cause for the Veteran's right shoulder pain and only speculated as to possible theories. The October 2021 examiner relied primarily on the absence of contemporaneous medical records to render a negative nexus opinion; such an opinion is inadequate for adjudicative purposes. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). Overall, the Veteran has consistently noted the in-service incident of falling off a tank during training in the early 1980s. The evidence does not specifically note another post-service incident that led to the Veteran's right shoulder condition. Medical professionals and evidence consistently recount the Veteran's statement of the in-service fall off a tank. The Board finds that the evidence is at least in equipoise as to whether the Veteran's right shoulder condition had its onset in service. Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's right shoulder condition originated from an injury during a period of INACDUTRA. Accordingly, service connection for right shoulder strain is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Right Ankle The Veteran is diagnosed with right ankle degenerative arthritis. See October 2021 examination report. The Veteran testified that he injured his right ankle around 1983 to 1984 when a tank moved and knocked him down and that he continued to get treatment. See November 2020 Board Hearing Tr. at 2-5. The Board finds the period in question must have been at least during a period of INACDUTRA service. The Veteran is competent to attest to the above incidents. The Board finds the Veteran's statements credible. As such, the first and second Shedden elements are satisfied. As to nexus, Dr. T.V.'s December 2014 letter noted the Veteran was being treated for the right ankle and that the Veteran stated the initial injury occurred while in the military. The October 2021 examiner noted the Veteran's statement that his right ankle condition was due to multiple injuries during service, as jumping off tanks and trucks and also running. Nexus opinions were obtained in October 2021. The examiner did not find the Veteran's right ankle condition connected to any period of service. The examiner noted the Veteran's statements, noted post-service treatment in which right ankle issues were only on-going for a few months previously, that pain was also due to his time as an "ultimate fighter" post-service, and that pain was all noted to have begun with the last decade. The Board notes the statements submitted in May 2011 by the Veteran's friends and family do not show a timeline of events back to service in the 1980s. Overall, the Veteran contentions have changed over time as to what specific in-service incident led to the development of his right ankle condition. Medical nexus opinions have been rendered for the Veteran's various periods of service and did not find a nexus. The Board finds the October 2021 opinions have adequate rationale and are probative. As noted in the opinions, medical evidence notes that the right ankle issues started within the last decade and are also due to time as an ultimate fighter. There is no positive nexus opinion to the contrary. Additionally, evidence of record generally refers to the foot and lower extremity instead of specifically the right ankle. The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, he is not competent to offer opinions on complex medical matters. Whether the Veteran's right ankle condition is attributable to service cannot be determined by mere observation alone. The Board finds that determining the etiology of the Veteran's right ankle condition is not within the realm of knowledge of a non-expert, and concludes that his opinion in this regard is not competent evidence and therefore not probative of whether his right ankle condition was attributable to service. As the preponderance of the evidence indicates that the Veteran's right ankle condition is not related to service, the benefit-of-the-doubt rule does not apply; accordingly, the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, 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.