Citation Nr: 21075192 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 11-23 880A DATE: December 17, 2021 ORDER Entitlement to service connection for a right shoulder disability is denied. FINDING OF FACT A chronic right shoulder disability was not manifested in service; arthritis of the right shoulder was not manifested within a year following the Veteran's discharge from active duty; and preponderance of the evidence is against a finding that any current right shoulder disability is etiologically related to his active-duty service or was caused or aggravated by a service-connected disability. CONCLUSION OF LAW Service connection for a right shoulder disability is not warranted. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who had active service from October 1988 to October 1992 and November 1993 to October 2004. This appeal is from a June 2009 rating decision that denied service connection for a right shoulder disability. In May 2015, a Travel Board hearing was held before the undersigned; a transcript is in the record. In August 2015 and June 2021, the case was remanded for further development. Service Connection Service connection is warranted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. To substantiate a claim of service connection there must be competent evidence showing: (1) the existence of a claimed disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a causal relationship between the present claimed disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain chronic diseases (to include arthritis) may be presumed to be service connected if manifested as chronic in service or to a compensable degree within a specified period after service (one year for arthritis). 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). For chronic disease listed in 38 C.F.R. § 3.309(a) service connection may be established by showing continuity of symptomatology. See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Secondary service connection may be established for a disability which is proximately due to, or the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310. To substantiate a claim of secondary service connection, the record must show (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) that the already service-connected disability caused or aggravated the disability for which service connection is sought. Wallin v. West, 11 Vet. App. 509 (1998). The Veteran asserts that he has a right shoulder disability that was incurred in service. In October 2008, he alternatively raised a secondary service connection theory of entitlement, but did not identify an already-service-connected disability alleged to have caused or aggravated the claimed right shoulder disability. At the May 2015 Board hearing, he testified that he injured his right shoulder in the field, and his arm was placed in a sling for two weeks. He testified that he had right continuing shoulder pain after his separation from active-duty service, but did not complain about it. Later in May 2015, he reported that he right shoulder arthritis was diagnosed during his active-duty service. The Veteran's service treatment records (STRs) show that on October 1993 entrance examination for his second period of active-duty service, his upper extremities were normal on clinical evaluation, and in a report of medical history, he denied having a painful or trick shoulder. In January 1997, he reported that he had injured his shoulder in the past November, but on examination, his right shoulder was found to be normal; and his right shoulder was normal on x-ray. The provider indicated that any right shoulder injury had healed. On August 2004 service separation examination, left, but not right, shoulder findings were noted. In a medical questionnaire, he reported shoulder pain due to a separated left collar bone. The STRs are silent for any findings or diagnosis of a chronic right shoulder disability. On July 2010 VA examination, the Veteran reported he sustained a right shoulder injury during his active-duty service. Upon examination and interview of the Veteran and review of his claims file, the examiner noted that x-rays of the Veteran's collar bone and right shoulder were normal, and diagnosed right shoulder strain with an almost normal examination. The examiner opined that any right shoulder disability was not related to a service-connected disability (but did not otherwise identify the etiology of any right shoulder disability). Post-service medical records show in May 2011, the Veteran's right shoulder range of motion was within functional limits. In August 2015, the Board remanded the claim for further development as the July 2010 VA examiner did not offer an opinion regarding direct service connection. In August 2017, the diagnosis was a right shoulder conjoined tendon partial tear. In January 2019, the Veteran reported having right shoulder pain for three weeks. A right shoulder x-ray showed mild degenerative changes and mild to moderate acromioclavicular (AC) joint space collapse. Right shoulder impingement syndrome was diagnosed. On July 2020 VA examination, the Veteran reported that he never really had a problem with his right shoulder. Upon interview and examination of the Veteran and review of his Veteran's claims file, the examiner indicated that there were no records after the Veteran's separation from active-duty service reflecting a right shoulder disability. In June 2021, the Board remanded the claim fur further development as the July 2020 VA examiner had apparently overlooked medical records that showed the Veteran had a right shoulder conjoined tendon partial tear, mild degenerative changes, mild to moderate AC joint space collapse, and impingement syndrome. In an October 2021 opinion based on review of the Veteran's claims file, a consulting VA provider noted that the Veteran's STRs showed he seen for right shoulder complaints without [history of] trauma in January 1997 when a right shoulder x-ray was normal. The examiner opined that any right shoulder condition during the Veteran's active-duty service likely resolved as his service separation examination was negative for any right shoulder pathology. The examiner further noted that in January 2019 the Veteran reported having right shoulder pain for three weeks, and opined that a complete review of the Veteran's claims file revealed that his STRs showed an acute and transitory right shoulder condition that did not progress into a chronic disability. The examiner explained that any underlying right shoulder pathology would have resulted in significant pain, limitation of motion, fatigue, and weakness leading to functional limitations manifested close to the date and time of injury, which the Veteran did not have. The examiner indicated that post-service activities, such as a snowboarding event, likely caused the Veteran's right shoulder impingement and strain, which had their onset in 2017, and were less likely than not due to the Veteran's active-duty service. The examiner opined that based on a lack of chronicity or continuity of symptoms, the recently diagnosed right shoulder strain and impingement are unrelated to the Veteran's active-duty service. Regarding direct service connection, the Veteran's STRs do not show any right shoulder injury or diagnosis of a chronic right shoulder disability. While they show that he reported right shoulder pain during service, the complaints were acute and transitory as there was not follow-up, and a chronic disability was not diagnosed. And while he has reported receiving a diagnosis of right shoulder arthritis during service, x-rays of the shoulder when he was seen for a right shoulder complaint in service were interpreted as normal. A right shoulder disability was not noted on August 2004 service separation examination. Based on the foregoing, the Board finds a right shoulder disability was not manifested as chronic in service, and that service connection for the disability on such basis is not warranted. Arthritis of the right shoulder was not manifested in the first year following the Veteran's separation from active-duty service; x-rays of his right shoulder during service and later on July 2010 VA examination were normal. The first documentation of a chronic right shoulder disability is in January 2019, when x-rays showed mild degenerative changes. Therefore, service connection for arthritis of the right shoulder on a chronic disease presumptive basis (under 38 U.S.C. § 1112), or based on continuity of symptomatology of right shoulder arthritis, is not warranted. What remains for consideration is whether the Veteran's current right shoulder disability is otherwise shown by competent evidence to be etiologically related to his active-duty service. Whether a current right shoulder disability is, or may be, related to remote service (and treatment for a right shoulder compliant therein) is a medical question. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran has not submitted any competent (medical opinion or treatise) evidence supporting that his current right shoulder disability is etiologically related to his active-duty service. VA has obtained medical opinions that address that question. Of these, the Board finds most probative the October 2021 VA examiner's opinion that the Veteran's right shoulder disability is less likely than not due to his active-duty service, explaining that his right shoulder disability is more likely due to post-service activities (such as snowboarding). The opinion notes that the claims file was reviewed, all evidence was considered, and cites to supporting factual data, and medical principles; the detailed explanation of rationale, includes notations that a chronic right shoulder disability was not shown in service; that any right shoulder injury during active-duty service was acute and transitory; and that right shoulder arthritis was not shown within a year following separation (and not until January 2019). The provider is a medical professional and is competent to offer the opinion given. The Board finds it to be the most probative evidence in this matter regarding the theory of direct service connection. The Veteran's assertions that his right shoulder disability are related to an injury on active-duty service are not competent evidence in the matter. While he is competent to report shoulder symptoms, he is a layperson and lacks the medical expertise to establish by his own opinion a nexus between his current right shoulder disability and his active-duty service. Regarding secondary service connection, while the Veteran has asserted that his right shoulder disability was entitled to secondary service connection, he has not identified the service-connected disability that is alleged to have caused or aggravated his right shoulder disability (He has established service connection for lumbar spine, left shoulder, and lower extremity disabilities.) The record does not include, he has not submitted, any competent (medical opinion or treatise) evidence supporting that his current right shoulder disability is related to a service-connected disability. Whether a service-connected disability caused or aggravated a right shoulder disability is a medical question that requires medical expertise. See Jandreau, 492 F.3d 1372. His own opinion in the matter has no probative value. The only medical opinion in the record that addresses that medical question is that of a July 2010 VA examiner who opined that any right shoulder disability was not related to a service-connected disability (noting that the right shoulder was almost normal). The provider is a physician-physiatrist, and competent (by training and/or experience) to offer the opinion. As there is no otherwise competent evidence in the record that indicates or suggests that a service-connected disability may have caused or aggravated a currently diagnosed right shoulder disability, the Board finds the July 2010 medical opinion regarding secondary service connection persuasive. Considering the foregoing, the Board finds that the preponderance of the evidence is against the claim. Therefore, the appeal in the matter must be denied. GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berryman, 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.