Citation Nr: 21074661 Decision Date: 12/16/21 Archive Date: 12/15/21 DOCKET NO. 15-19 920 DATE: December 16, 2021 ORDER Service connection for left shoulder condition, to include as secondary to service-connected degenerative arthritis of the lumbar spine with intervertebral disc syndrome, is denied. FINDING OF FACT The preponderance of the evidence weighs against a finding of service connection for left shoulder condition, to include as secondary to service-connected degenerative arthritis of the lumbar spine with intervertebral disc syndrome. CONCLUSION OF LAW The criteria for service connection for left shoulder condition, to include as secondary to service-connected degenerative arthritis of the lumbar spine with intervertebral disc syndrome have not been met. 38 U.S.C. §§ 1110, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to February 1968. This matter comes to the Board of Veterans' Appeals (Board) from a December 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to service connection for a left shoulder condition. The Board notes that the Veteran perfected an appeal that also sought service connection for a psychiatric disorder. This claim was granted in an August 2021 rating decision and therefore needs not be addressed on appeal here. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (a claim is no longer in controversy when the maximum available benefit sought is awarded). The Board has remanded the present claim three times, in April 2018, August 2020, and May 2021 for additional medical opinions. Substantial compliance with the remand requests having been achieved, the Board may proceed to consider the claim. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Service Connection The Veteran contends that his left shoulder condition is directly the result of service or is secondary to his service-connected degenerative arthritis of the lumbar spine with intervertebral disc syndrome. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing direct service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). 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. 38 C.F.R. § 3.303. Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Secondary service connection may also be established for a disorder which is aggravated by a service-connected disability; compensation may be provided for the degree of the disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310; Allen v. Brown, 8 Vet. App. 374 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1376-77. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. At his service entrance medical examination in December 1965, the Veteran denied having a bone, joint, or other deformity or a painful or "trick" shoulder or elbow. He reported a prior back injury that had occurred, he told the examiner, in 1961, that had required him to wear a back brace. Medical records indicated that he was diagnosed with a back muscle sprain in February 1963. His service treatment records (STRs) indicated that he never sought treatment for a shoulder or arm injury while on active duty, though he did complain of a number of other maladies, including an eye injury, rash, ankle sprain, dizziness, and cough. During his December 1967 separation examination, he voiced no complaint of shoulder injuries and the evaluation of his upper extremities was normal. The Veteran specifically denied having swollen or painful joints; bone, joint, or other deformity; and painful or "trick" shoulder. He declared himself on the form to be "in good health." Medical records for the period immediately after the Veteran's separation have been lost or destroyed, as he himself has acknowledged. The earliest available records from May 1996 show that he had a "complete physical" and made no complaints about shoulder problems, though he was treated for hypertension. However, a letter from his private chiropractor stated that he had been treating the Veteran since August 1996 for reoccurring left shoulder pain. The Veteran voiced no complaints about his shoulder or suffering pain during VA physicals over the next several years, though he reported multiple other issues. There are available chiropractic records in the claims file from November 2004, when he reported to his chiropractor pain in his left shoulder, particularly his left shoulder blade. He continued to describe left shoulder blade pain intermittently over the next half-dozen years, along with back and hip pain and occasional numbness in his extremities, until he began to report feeling better in June 2010. By 2012, however, he was again reporting numbness in his left shoulder, leg, and back. During a hearing before a Decision Review Officer in February 2017, the Veteran maintained that his left shoulder problem was linked to his back problem and asserted that his chiropractor had informed him of the connection. In November 2019, the Veteran was diagnosed with mild to moderate degenerative disc disease, degenerative joint disease, and bilateral lower extremity radiculopathy by a VA examiner. He informed the examiner during the examination that he had first experienced low back pain in 1966. The same examiner also evaluated the left shoulder and arm. The Veteran reported that his left shoulder pain had, like his back injury, first occurred in 1966, and informed the examiner that it had progressively worsened since. He added that he presently had difficulty lifting heavy objects. The examiner documented limitations of the range of motion (ROM) in the Veteran's left shoulder due to pain, with some diminishment of muscle strength, and noted that she suspected a rotator cuff condition. The examiner was unable to perform a Hawkins' Impingement Test and similar tests to confirm her suspicion due to the Veteran's reported pain. She diagnosed a shoulder sprain and concluded that the claimed shoulder and arm conditions were less likely than not incurred in or caused by a claimed in-service injury, event, or illness. She explained that there was no evidence in the record that the Veteran complained about the conditions or that he was treated for the conditions while in service. A VA examination in October 2020 revealed that the Veteran's lumbar spine degenerative arthritis had become much worse. The examiner concluded that given the Veteran's history of back pain prior to his entry into the service, it was plausible that basic training and other duties on active service had aggravated his degenerative disc disease and thus there was a nexus between his service and present injury. The examiner rejected, however, any secondary connection between the Veteran's lumbar spine condition and his shoulder pathology. The shoulder condition, he opined, was less likely than not proximately due to or the result of the service-connected condition because there was no direct causality between a lumbar spine condition and a shoulder pathology; he speculated that it was more likely that symptoms of a pathological shoulder condition could arise from a degenerative cervical disc syndrome than a lumbar process. After a magnetic resonance imaging (MRI) of the left shoulder in February 2020 indicated that he had a torn rotator cuff, the Veteran underwent a left shoulder arthroplasty the following May. He began rehabilitation therapy shortly thereafter. The Veteran was examined by a VA examiner again in August 2021. The examiner noted the diagnosis of left rotator cuff tear, status post left shoulder arthroplasty with residuals, and tendinopathy. The Veteran reported pain in his shoulder that limited his ability to lift heavy objects. The examiner additionally noted a restricted ROM in his left shoulder which limited his ability to raise his left arm over his head. Several tests for a rotator cuff injury such as the Hawkins' Impingement Test were positive, though several others were negative. The examiner concluded that the Veteran's shoulder condition was less likely than not incurred in or caused by a claimed in-service injury, event, or illness. The examiner acknowledged that the Veteran's duties as an airframe and aircraft repairman were consistent with his claim of a shoulder injury, but also pointed out that there were no in-service medical records to support a left shoulder injury or complaint during service. Therefore, he reasoned, he could not render a positive opinion that the Veteran's shoulder condition was related to an in-service injury without speculating about the injury that may have occurred that is, its type, extent, and severity. The examiner also echoed the October 2020 examiner's opinion that the Veteran's shoulder condition was not caused or aggravated by his lumbar spine arthritis and lower extremity radiculopathy, which had been recently service-connected by the RO in November 2020. The shoulder and lower back, the examiner explained, "are two separate areas of the body" such that they "do not have any relationship to each other when it comes to the Veteran's disabilities." The examiner observed that medical evidence does not support a conclusion that the Veteran's left shoulder issues could have been caused or aggravated by the lumbar spine degenerative disc disease, degenerative joint disease, or bilateral lower extremity radiculopathy. Service connection for left shoulder condition, to include as secondary to service-connected degenerative arthritis of the lumbar spine with intervertebral disc syndrome is denied. The Board finds that the preponderance of the evidence is against a finding of service connection for left shoulder condition, to include as secondary to service-connected degenerative arthritis of the lumbar spine with intervertebral disc syndrome. The Veteran did not report a shoulder injury or similar ailment at his entrance exam, though he did report a problem with his lower back that pre-dated his service. His STRs did not indicate that he ever complained of shoulder difficulty or loss while he was on active duty, though he complained of other injuries and maladies. The Veteran affirmed that he was in "good health" at his separation examination, and specifically denied having a painful or "trick" shoulder. The Veteran's medical records for the period immediately after his discharge and through the next several decades are not part of the record, having been lost or destroyed. The Veteran himself reports that he suffered shoulder pain and back pain almost immediately after his separation, and that he had disc surgery in 1968 to relieve the pain. The Board has considered these lay reports in its analysis. The existent records beginning in 1996 did not contain complaints pertaining to the left shoulder, though the Veteran's chiropractor described providing treatment for left shoulder pain since that time. The chiropractor's treatment notes did not indicate that he believed that the pain in his shoulder was related to previous injuries or to the back problems he was suffering at the same time. The November 2019, October 2020, and August 2021 VA examiners separately agreed that the current left shoulder condition was less likely than not incurred in or caused by a claimed in-service injury, event, or illness. Although acknowledging the Veteran's lay contentions and his duties in service, since there was no report of a complaint or treatment of the shoulder during service, they explained, direct service connection could not be drawn without, as the August 2021 examiner characterized it, "speculating" about the injury or condition. A medical opinion is not inadequate merely because it is inconclusive. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). "An examiner's conclusion that a diagnosis or etiology opinion is not possible without resort to speculation is a medical conclusion just as much as a firm diagnosis or a conclusive opinion." Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). But if an examiner is unable to render a definitive opinion on an issue, he or she must explain the reason for that inability. Jones v. Shinseki, 23 Vet. App. 382, 390-92 (2010). Here, the August 2021 examiner explained the inability, specifically noting that without any medical documentation of an injury or complaints during service, any medical opinion he provided would be speculative as to causation of the current condition. Additionally, all three examiners concluded that it was less likely than not that the Veteran's shoulder condition variously diagnosed initially as shoulder sprain and later as a torn rotator cuff was caused or aggravated by his degenerative disc disease and degenerative joint disease of the lumbar spine. As the October 2020 and August 2021 examiners explained, the shoulder and lower spine are separate areas of the body and there is no medical basis to conclude there is a connection between a shoulder sprain or rotator cuff injury and arthritis of the lower spine. Injury to the shoulder was more likely to arise, as the October 2020 examiner observed, from a degenerative cervical disc syndrome than lumbar disabilities. The probative value attributed to a medical opinion issued by either VA or private treatment providers to support service connection depends on factors such as thoroughness, degree of detail, and whether there was a complete review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Board must also consider whether the examining medical provider had a sufficiently clear and well-reasoned rationale, and a basis in supporting objective clinical data. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (the Board rejects medical opinions that do not indicate whether the physicians actually examined the veteran, do not provide the extent of the examination, and do not provide supporting clinical data). The Court has also held that a bare conclusion, even when reached by a health care professional, is not probative without an accurate factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). The November 2019, October 2020, and August 2021 VA examiners opinions have set forth the results of their comprehensive reviews of the claims file and the Veteran's lay reports; reviewed the applicable medical literature; and provided clear and consistent rationales for their opinions. Hence, the Board finds the opinions highly probative and, taken in conjunction with each other and the lay and medical evidence of record, attaches significant weight to them on the matter of nexus between the Veteran's shoulder condition and his military service and between his shoulder condition and service-connected lumbar spine condition. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); Stefl v. Nicholson, 21 Vet. App. at 124. The Veteran maintains that his shoulder condition is a result of injury in service or is secondary to his service-connected degenerative disc disease, lumbar spine. As a lay person, however, he has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d at 1376-77 (noting general competence to testify as to symptoms but not to provide medical diagnosis). Degenerative disc and joint disease and shoulder sprains and torn rotator cuffs are not the types of conditions that are readily amenable to mere lay diagnosis or probative comment regarding their etiology, as the evidence shows that physical examinations as well as a familiarity with X-rays, MRIs, and medical literature are required to make such diagnoses. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau, 492 F.3d at 1377. Thus, the Veteran's opinion regarding the etiology of his conditions is not competent medical evidence. The Board has considered the Veteran's contention to the effect that his shoulder condition first manifested itself during his service and his explanation years later that he did not report it because "I wanted to get home to my family." His vague statements, however, do not detail the time or place of the injury, how it occurred, or the specific symptoms. His generalized assertion that he felt pain in his shoulder in 1966 does not establish a connection to objective diagnoses decades later of a shoulder sprain and a torn rotator cuff. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (rejecting the argument that a veteran's lay evidence that an event occurred must be accepted unless affirmative documentary evidence provides otherwise). "Rather, in all cases, a non-combat veteran's lay statements must be weighed against other evidence, including the absence of military records supporting the veteran's lay assertions." Id; compare 38 C.F.R. § 1154(b). Thus, while a medical opinion must not rely solely on the absence of in-service treatment or findings, Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006), the lack of contemporaneous medical evidence may be considered as one factor in assessing the credibility of lay statements. See id. Here, the Veteran's own statements at service separation specifically denying a painful or "trick" shoulder carry more credibility than his statements made many years after separation in connection with a claim for monetary benefits. (Continued on the next page) The preponderance of the evidence is against a finding that the Veteran's claimed left shoulder condition was caused or aggravated by service, became manifest within the first year of separation from service, or established a continuity of symptomatology. Further, the preponderance of the evidence is against a finding that the left shoulder condition was proximately caused or aggravated by his service-connected lumbar spine disability. Accordingly, service connection for a left shoulder condition must be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102, 3.303, 3.307; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). RACHEL E. JENSEN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Wilkinson, Edward L. 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.