Citation Nr: 21075711 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-45 017 DATE: December 21, 2021 ORDER The portion of the January 2021 Board of Veterans Appeals (Board) decision that denied entitlement to service connection for a left shoulder disability, to include a labral tear, is vacated. Entitlement to service connection for a left shoulder disability, to include a labral tear, is denied. FINDINGS OF FACT 1. Prior to the issuance of the January 2021 Board decision, the Veteran submitted a private medical opinion which was not addressed. 2. The preponderance of the evidence is against finding that the Veteran's left shoulder condition began during active service or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for a partial vacatur of the January 2021 Board decision are met. 38 U.S.C. § 7104; 38 C.F.R. § 20.1000 (2020). 2. The criteria for entitlement to service connection for a left shoulder condition, to include a labral tear, are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2001 to November 2006. This matter comes before the Board on appeal from a January 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in May 2019 and January 2021. In May 2019, the Board denied service connection for a right shoulder disability and remanded the left shoulder claim for additional development. In January 2021, the Board, in part, denied the Veteran's claim for service connection for a left shoulder disability. In March 2021, the Veteran submitted a Motion to Reconsider the issue of entitlement to service connection for a left shoulder disability, arguing that favorable evidence was not addressed in the Board's decision. As will be discussed below, the portion of the January 2021 decision that denied service connection for a left shoulder disability is vacated, and the matter will be readjudicated herein. The Veteran has also submitted a Motion to Reconsider the Board's May 2019 denial of service connection for a right shoulder disability. This motion will be addressed by the Board following this decision. As a final matter, additional VA treatment records were associated with the claims file following the January 2021 Board decision. Upon review, these are either not relevant or are copies of treatment records already contained in the claims file and considered by the RO. PARTIAL VACATUR The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 C.F.R. § 20.1000. Board decisions are to be based on the entire record in the proceeding and upon consideration of evidence and material of record and applicable provisions of law and regulation. Each Board decision shall contain a written statement of the Board's findings and conclusions and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record. 38 U.S.C. § 7104. As noted above, the Board, in part, denied service connection for a left shoulder disability in a January 2021 decision. The Veteran subsequently filed a Motion to Reconsider the Board's decision on the basis that it did not address a favorable medical opinion that he submitted from a private healthcare provider. Because the January 2021 decision did not consider the relevant evidence submitted by the Veteran, the Board finds the Veteran was deprived of due process of law. Consequently, the January 2021 Board decision denying entitlement to service connection for a left shoulder disability, to include a labral tear, is vacated. The favorable medical evidence submitted by the Veteran will be addressed in detail below. Service connection for left shoulder disability The Veteran maintains that his current left shoulder condition is related to service. Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires the following: (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Alternatively, when a disease under 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303(b). However, the use of continuity of symptomology to establish service connection is limited only to those diseases listed under 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). The Veteran was diagnosed with bicep tendinosis and a labral tear in his left shoulder in May 2014 which resulted in arthroscopic surgery. See December 2014 private treatment records. A current disability has therefore been demonstrated. The Veteran maintains that he strained his shoulder while lifting weights in service, which caused his current shoulder disability. In support of his claim, the Veteran submitted a statement from Mr. S.C., a fellow serviceman, indicating that he witnessed the Veteran injure himself when he lost control of a weight. Mr. S.C. An in-service event has therefore been demonstrated. See December 2015 Statement in support of claim. As the record contains evidence of a current disability and evidence of an in-service injury, what remains to be established is a nexus between the claimed in-service injury and the present disability. A review of the service treatment records did not reveal any treatment or diagnosis related to the Veteran's shoulder. The Veteran reported that he injured his left shoulder while lifting weights but did not seek treatment because he was about to deploy and did not want to be separated from his unit. See a December 2015 statement. He also stated that he did not report any left shoulder complaints at the time of his exit examination from service because he did not want to delay his separation from service. The Veteran's service treatment records include an August 2006 separation report of medical history wherein he reported no painful shoulders and that he did not suffer from any injury or illness while on active duty for which he did not seek medical care. Additionally, the Veteran was evaluated for separation and the examiner stated the Veteran was physically qualified to separate, "which means that no medical condition has been noted that disqualifies the Veteran from performance of duties or warrants a disability evaluation." Post-service treatment records reflect the Veteran sought treatment for shoulder pain beginning in February 2008. The Veteran sought treatment for a rotary cuff injury. The examiner noted the Veteran's medical history was largely unremarkable. The Veteran stated that in the last three years, his left shoulder pain "comes and goes" particularly when he is weightlifting. An x-ray revealed no fractures, no lytic or blastic bony lesions, no glenohumeral or acromioclavicular joint lesions, and no soft tissue lesions. The physician diagnosed the Veteran with a left mild shoulder impingement and a grade 1 AC sprain. The Veteran was instructed to avoid heavy lifting to allow appropriate healing of the shoulder. See March 2008 CAPRI received May 2012. Private records demonstrate the Veteran began treatment at a sports medicine facility for lower back pain in 2013. In April 2014 the Veteran started reporting left shoulder pain. Ultimately, in May 2015 the Veteran underwent arthroscopic surgery in his left shoulder. Pre-operative magnetic resonance imaging (MRI) findings suggested that his shoulder pain was related to his bicep tendon. In December 2015, a VA examiner concluded that the Veteran's left bicep tendon condition and left shoulder condition was less likely than not related to service. The examiner reasoned that there was no evidence of an evaluation or treatment in service. In November 2017, a VA examiner also concluded that the Veteran's condition was less likely than not related to service. The examiner noted the Veteran's medical history in service and the statement from Mr. S.C. regarding the injury and concluded that there was no objective evidence of a left shoulder injury in service, so she could not establish a nexus. Pursuant to the May 2019 Board remand, an addendum VA opinion was provided in October 2019. The examiner stated that the Veteran's left shoulder condition was less likely than not incurred in or caused by service. The examiner acknowledged the statements made by the Veteran and his fellow serviceman and concluded that while the statements report an injury in service, they do not report that the in-service injury is related to his current shoulder condition. The examiner noted that the Veteran's first documented complaint of left shoulder pain was in 2008. The Veteran's next report of shoulder pain was in 2014. The examiner concluded that given the documented history of treatment, it was more likely than not that the Veteran's in-service history of pain was related to an acute injury, and that the proximate cause of his diagnosed tendinosis and labral tear occurred from weightlifting after service. In August 2020, the Veteran submitted a private opinion from Dr. J.E. The physician found that it was more likely than not the Veteran's 2005 shoulder injury caused the Veteran to have abnormal movement, which caused repetitive tears which required surgery in his left shoulder. See July 2020 Independent medical examination. The Board finds that the preponderance of the evidence is against finding service connection for a left shoulder condition. The medical opinions from December 2015, November 2017 and May 2019 are highly probative. Collectively the opinions establish that the Veteran's shoulder condition is not etiology related to an in-service injury, event, or disease. Particularly the October 2019 opinion which consider the evidence of record, including the Veteran's own statements, statements from his fellow servicemembers, as well as the evidence or lack thereof contained in service treatment and other VA medical records. The 2019 examiner's opinion is highly probative, because it is based on an accurate medical history and provides explanations that contain clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In contrast, the Board finds the July 2020 opinion provided by Dr. J.E. to be less probative. Dr. J.E., in part, based his opinion on a reported history provided by the Veteran. The report stated that by the time the Veteran left service, he was having difficulty lifting and bending. The Board finds these statements to lack credibility as they are in direct conflict with the contemporaneous evidence of record. Although the Veteran claims to have denied shoulder complaints in the self-report of medical history he completed at separation, "difficulty lifting and bending" are the types of impairments that would have been revealed when he was assessed for separation. This is also inconsistent with the transient left shoulder pain that the Veteran complained of in 2008. To the extent that the Veteran maintains that his shoulder pain has persisted since service, service connection cannot be established on the basis of continuity of symptomatology because his current diagnoses tendinosis and labral tear are not chronic diseases listed under 38 C.F.R. § 3.309(a). Walker supra. Further, as discussed above, the competent and credible medical evidence of record indicates that the Veteran's current left shoulder disability is not related to, or a continuation of, his in-service injury. The Board has considered the Veteran's and his fellow serviceman's statements that the Veteran's shoulder injury occurred in service. While they are competent to state what they witness or describe observable symptoms such as pain, they are not competent to testify as to the etiology of the Veteran's shoulder condition. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The record does not show, nor does the Veteran or fellow serviceman contend, that they have specialized education, training, or experience that would qualify them to provide an opinion on these matters. Consequently, the Board assigns no probative weight to the Veteran's or his fellow serviceman's assertion that his in-service injury is the cause of his current shoulder condition. Accordingly, the Board gives more probative weight to the aforementioned medical opinions. In sum, although the Veteran has a current shoulder disability and a reported shoulder injury in-service, the preponderance of the evidence of record in this case is against finding that the Veteran's current left shoulder disability was incurred in, aggravated by, or otherwise the result of active service. Therefore, the Veteran's claim of entitlement to service connection for a left shoulder disability must be denied. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.V. Palatt, 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.