Citation Nr: 21075010 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 19-24 149 DATE: December 17, 2021 ISSUE Entitlement to service connection for a left shoulder disability. ORDER Entitlement to service connection for a left shoulder disability is denied. FINDING OF FACT A left shoulder disability was not manifest during active service, or until many years after service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a left shoulder disability have not been met or approximated. 38 U.S.C. §§ 1112, 1113, 1131; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1968 to January 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the issue on appeal for additional development in September 2019, April 2021 and September 2021. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). Please note that the case has been advanced on the docket pursuant to 38 C.F.R. § 20.900 (c). Clear and Unmistakable Error In his August 2019 VA Form 9, the Veteran used a term that has substantial legal effect in VA law and regulations, "clear and unmistakable error," often referred to by its acronym CUE. See generally 38 U.S.C. § 5109A; 38 C.F.R. § 3.105. The Veteran noted on his VA Form 9, used for appeal of the denied issue to the Board, that he believed the assignment of "[a]nything, other than [a] disability compensation finding is clear and unmistakable error". The Board notes generally that CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. An assertion that the adjudicators had "improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE." Fugo v. Brown, 6 Vet. App. 40 (1993). Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be, ipso facto, [CUE]. Id. at 43-44. "In order for there to be a valid claim of [CUE],... [t]he claimant, in short, must assert more than a disagreement as to how the facts were weighed or evaluated." Id. See also Eddy v. Brown, 9 Vet. App. 52, 54 (1996). An asserted failure to evaluate and interpret correctly the evidence is not clear and unmistakable error. See Damrel v. Brown, 6 Vet. App. 242, 245-246 (1994). Generally, CUE must be pled with some degree of specificity as to what the alleged error is and, unless it is the kind of error that if true would be CUE on its face, the claimant must also give persuasive reasons as to why the result of the prior determination would have been manifestly different but for the alleged error. Fugo v. Brown, 6 Vet. App. 40, 44 (1993); see also Phillips v. Brown, 10 Vet. App. 25 (1997). CUE in RO decisions is governed primarily by 38 U.S.C. § 5109A and 38 C.F.R. §§ 3.104, 3.105, and 3.2600. Claimants may allege CUE in an RO decision at any time after the RO's decision is made. But for the Board to have jurisdiction, the AOJ must have first adjudicated that specific theory of CUE. See Jarrell v. Nicholson, 20 Vet. App. 326, 332-333 (2006) (en banc). The Board finds the use of the Veteran's term of "clear and unmistakable error" to be within its plain meaning in this particular instance, and not a formal motion for CUE pursuant to 38 U.S.C. § 5109 and 38 C.F.R. § 3.105. First of all, the Veteran never made a formal motion of CUE with the RO, who by regulation must adjudicate a CUE motion regarding an RO decision in the first instance. The Board cannot gain jurisdiction of the issue(s) relevant to a CUE motion unless the RO has first adjudicated the particular motion. 38 C.F.R. § 3.2600. Furthermore, the CUE assertion as in relation to the denial of the claim for the left shoulder disability was not pleaded with specificity, and it appears to challenge the interpretation of the facts and other evidence in the case. Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc) (addressing 38 C.F.R. § 3.105(a)); Fugo at 44. As such, the Board will proceed with the adjudication of the Veteran's service connection claim. Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, 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 between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Entitlement to service connection for a left shoulder disability The Veteran contends that he is entitled to service connection for a left shoulder disability, to include bursitis and rheumatoid arthritis, as he injured his left shoulder during basic training and the condition had its onset during his active- duty military service. Specifically, in his January 2019 NOD, the Veteran claimed that he had bursitis of his left shoulder that was incurred due to crawling through snow during basic training from January 1968 to March 1968. He further indicated that he had rheumatoid arthritis of his left shoulder which was incurred during basic training due to continuous training in cold weather for extended periods of time. At the outset, the Board recognizes that the Veteran's service treatment records contain a February 1968 treatment note showing that the Veteran injured his shoulder. Although it is difficult to tell whether the record refers to his left shoulder or right shoulder, the Board has already conceded in its September 2019 decision that the record reflects treatment for pain in his left shoulder. Additionally, the Board notes that the Veteran's January 1970 separation examination is silent for any complaints, diagnosis or treatment for any musculoskeletal problems. The record reflects that the Veteran sought treatment for his left shoulder in October 2011 from his primary care physician. The private treatment record indicates that the Veteran reported a history of left shoulder pain and decreased range of motion of his left shoulder, with tenderness to palpation. An April 2012 private treatment note reflects that while the Veteran was seeking treatment for low back pain, the Veteran reported that he had worked in a warehouse doing a heavy labor job for years. The Veteran did not report complaints for left shoulder problems at this time. A December 2016 private treatment note was silent for complaints of left shoulder problems but did report that the Veteran worked as a barber which required him to lean over his clients all day. The Veteran was afforded a VA Shoulder and Arm Conditions Examination in January 2020. The Veteran reported that his condition began in February 1995 and began with left shoulder pain from wear and tear. At that time the examiner diagnosed shoulder impingement syndrome. Imaging studies were completed and did not reveal degenerative or traumatic arthritis of the left shoulder. The examiner opined that it was less likely than not that the Veteran's left shoulder disability was incurred in or caused by service. In providing a rationale the examiner explained that the Veteran's February 1968 service treatment note indicating left shoulder pain did not reveal tenderness or loss of range of motion of the extremity, nor was any diagnosis or abnormality noted. The VA examiner noted that the Veteran's records were silent for a left shoulder condition for over 40 years and there was no evidence of degenerative changes on x-ray. Therefore, the examiner concluded that it was less likely than not that the Veteran's current left shoulder disability was consistent with the February 1968 in-service complaints of left shoulder pain. In the April 2021 Board decision, the Board determined that the medical opinion of the January 2020 VA examiner was inadequate for adjudication purposes as the examiner improperly heavily relied on the absence of medical records which memorialized the Veteran's left shoulder disability. At that time the matter was remanded to obtain a new VA medical opinion. The Veteran was afforded a new VA examination in June 2021. At that time the examiner diagnosed left shoulder strain. Upon review of the claims file the examiner opined that it was less likely than not that the Veteran's left shoulder disability was related to his active- duty service. In providing a rationale the examiner acknowledged the Veteran's February1978 complaints of left shoulder pain, however the examiner pointed out that there was no other documentation in service or at separation regarding musculoskeletal complaints. The examiner stated that the next complaint for the left shoulder was in October 2011, which was years later, with no sign of interim complaints. Therefore, the examiner concluded that it was less likely than not that the Veteran's current left shoulder disability was caused by his in-service left shoulder pain. In the September 2021 Board decision, the Board found that in providing a negative opinion, the June 2021 VA examiner also relied almost entirely on the lack of contemporaneous records showing chronicity of care after service for the left shoulder. As such, the Board again remanded this matter for an addendum medical opinion. As directed, the matter was returned to the June 2021 VA examiner who issued an addendum opinion in October 2021. At that time the examiner again opined that it was less likely than not that the Veteran's left shoulder disability was related to his active- duty service. In providing a rationale the examiner explained that the medical records do not support that the Veteran's current left shoulder disability was caused by the February 1968 left shoulder complaint which was short lived and was not reported again by the Veteran at his time of separation in 1970, nor was there an abnormal shoulder examination at that time. The examiner acknowledged the Veteran's October 2011 complaint of shoulder pain to his primary care physician, however the examiner pointed out that at subsequent visits the Veteran did not express shoulder complaints and his physician did not record shoulder complaints upon the review of his systems. The VA examiner also noted that the Veteran's private treatment records consistently documented a full range of motion of the extremities. The examiner cites to the Veteran's April 2012 treatment note in which the Veteran reported that he worked in 15 years of heavy labor as well as the January 2020 VA examination where the Veteran stated that his history of shoulder pain began in 1995, which was decades after service. The examiner also explained that aside from the lack of medical evidence in favor of the claim, a persistent left shoulder complaint of any significance would not be silent during 15 years of heavy lifting, surface after beginning a barber occupation, and then become silent again in subsequent encounters and have normal examinations as documented in the private treatment notes. The Board finds the October 2021 VA opinion to be of great probative value. The examiner's opinion considered the Veteran's specific contentions of his in- service events, the claims file, and clinical medical evidence, including private treatment records, before providing a negative opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). The examiner's negative etiological opinion was supported by a sufficiently clear and well-reasoned rationale and was consistent with the verifiable facts regarding the Veteran's contentions. 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 examiner based the rationale not only on the absence of contemporaneous evidence of a chronic left shoulder condition but explained that a persistent left shoulder complaint of any significance would not be silent during 15 years of heavy lifting, surface, and then become silent again with normal examination results in subsequent encounters. There is no evidence that the VA examiner who issued the October 2021 opinion was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds that it is entitled to significant probative weight as to the etiology of the Veteran's left shoulder disability. See Nieves-Rodriguez, Id. The Board acknowledges the Veteran's belief that he carries diagnoses of bursitis and rheumatoid arthritis of the left shoulder, as well as his belief that his left shoulder disability is related to his active- duty service. Lay evidence on its own can be sufficient evidence of a diagnosis 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. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. A layperson cannot provide evidence as to more complex medical questions and, specifically, cannot provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2). To the extent that the Veteran can observe symptoms related to a left shoulder disability, he is competent to comment on and endorse these symptoms. However, the determination of a diagnosis of bursitis or rheumatoid arthritis is a complex medical determination beyond his competence. See Layno v. Brown, 6 Vet. App. 465 (1994); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Board finds that the Veteran's lay statements of record cannot be accepted as competent evidence sufficient to establish a diagnosis or etiology of the left shoulder disability. In addition, the Board finds that the gap in time between the Veteran's last date of active service, in January 1970, and the initial mention of left shoulder problems in his post-service treatment records in October 2011 to be probative of a lack of nexus between the diagnosed current disability and active service. A negative inference may be drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board notes there are no statements by any medical provider, VA or private, that are in favor of a possible nexus to service for the Veteran's claimed left shoulder disability. Upon review of the record, the Board concludes that entitlement to service connection for a left shoulder disability is not warranted. The Board notes current diagnoses of left shoulder impingement syndrome and a left shoulder strain, and thus the requirement for a current disability is shown. The Board acknowledges the Veteran's contentions, and the Veteran's post-service statements are noted. However, the record documents normal examination findings upon separation in 1970 and is silent for any mention of a left shoulder disability until the October 2011 private treatment record. The VA examiner reviewed the entire claims file and opined that the Veteran's left shoulder disability is not related back to active service. The Board thus finds the Veteran fails the third prong of the test for entitlement to direct service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. Based on the above, the Board finds that the weight of the competent and credible evidence demonstrates that the Veteran's claimed left shoulder disability was not incurred in service. For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for a left shoulder disability, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Nettey, 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.