Citation Nr: 21075885 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 18-16 717 DATE: December 21, 2021 ORDER Service connection for a right shoulder disability, including arthritis, is denied. FINDING OF FACT The Veteran's right shoulder disorders, including arthritis, were not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a right shoulder disability, including arthritis, have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1975 to August 1995. The Veteran testified at a Board of Veterans' Appeals (Board) hearing in November 2019 before a Veterans Law Judge (VLJ) who is no longer with the Board. In June 2021, he was offered an opportunity for an additional hearing, but declined. In a January 2020 decision, service connection for a right shoulder disorder was denied by the Board. The Veteran appealed the Board's denial to the United States Court of Appeals for Veterans Claims (Court), and the Board's decision was vacated pursuant to a March 2021 Court order following a Joint Motion for Remand (JMR). The parties agreed that the Board denial failed to properly address the Veteran's testimony regarding his shoulder pain since service and reasons why he failed to seek medical treatment at that time. The Court granted the JMR and remanded the case to the Board. The issue was then remanded by the Board for further development in August 2021. This was accomplished and the case has been returned for further appellate consideration. Service connection for a right shoulder disability The Veteran contends that service connection should be established for his right shoulder disabilities, which he believes are the result of a football injury he sustained during service. During his hearing on appeal, he testified regarding the circumstances surrounding the injury and stated that he had had right shoulder symptoms since service. He related that he did not seek treatment for his shoulder pain because he did not wish to appear weak in front of his fellow servicemen. Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). The Veteran has a current diagnosis of arthritis as evidenced by a VA examination dated in February 2017. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. The record includes the Veteran's service treatment records (STRs), which show that in July 1980 the Veteran was treated for complaints of a bruise to the dorsal right shoulder sustained while playing football the evening earlier. On examination, the Veteran was moving his arm generally "OK" with no abnormalities of the bone or muscle. The impression was bone bruise with tendon and ligament strain/bruise. He was placed on limited duty for four days and was to return in four to five days if there was no improvement. There is no indication in the STRs that the Veteran returned for further treatment. The STRs include physical examinations in 1981, 1985, 1986, 1990, 1992, and on retirement from service in April 1995 that show no abnormality of the Veteran's right shoulder. Post-service medical records include a November 2016 private treatment record that shows that the Veteran had a chief complaint of chronic, intermittent, progressively worsening right shoulder pain for at least one year. At that time, he described a chronic history of right shoulder pain that initially began while he was playing football in service. He described sharp right shoulder pain over the past year with movement overhead and behind his back. The assessments were osteoarthritis, impingement syndrome, and pain of the right shoulder. A VA examination in February 2017 included right shoulder diagnoses of rotator cuff tendonitis, acromioclavicular (AC) joint osteoarthritis and degenerative arthritis. Following examination, the examiner opined that the Veteran's right shoulder conditions were less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the Veteran's STRs did not document chronicity of the right shoulder condition. There was documentation of a right shoulder bruise in 1980 after playing football, but the medical record did not document any further visits for right shoulder pain. The examiner noted that several examinations following the injury were "noncontributory for right shoulder condition." The examiner also acknowledged the 2016 record that documented the Veteran's report of right shoulder pain since service, but stated that the record did not substantiate this claim. Therefore, the examiner found that chronicity of the right shoulder condition from 1980 until 2016 had not been established in the medical documentation. Following remand by the Court and the Board, an addendum opinion was obtained in September 2021. After review of the record, the examiner opined that it was "unlikely that the veteran's current shoulder injury [was] related to the football injury in service." Regarding the Veteran's assertion that he did not seek care for fear of appearing "weak," the examiner noted that the records "show[ed] that the veteran sought care many times for multiple complaints, big and small, with no apparent weakness," and that despite this, there was no additional care sought for the shoulder. The examiner went on to state that the evidence of record did not support the history as remembered by the Veteran. It was also stressed that the examiner's opinion was not solely based on a negative in-service diagnosis. The examiner explained that the Veteran's claim was that the in-service right shoulder injury had been of such magnitude that it continued to affect him 36 years after the event, but a review of the civilian, VA and service records failed to show any complaint even after "working 13 years worked as physical labor in Guilford Mills." The examiner noted that it was not until November 2016 that the Veteran was diagnosed with arthritis, impingement and pain, and stated that osteoarthritis was not an unexpected finding at age 60. The examiner also pointed out that risk factors for impingement syndrome mainly included repetitive activity at or above the shoulder during work or sports, and that as with many shoulder disorders, increasing age predisposed an individual to impingement syndrome. The examiner noted that the Veteran's in-service injury involved the scapula with some AC tenderness. The examiner then concluded it was more likely that the Veteran's current right shoulder disabilities were from the 13 years of physical labor than the one in-service injury. The examiner stated the Veteran's right shoulder pain was likely the combination of osteoarthritis and impingement, as the evidence did not substantiate that the current right shoulder conditions were related to the remote injury over 30 years earlier. Review of the record shows that following the injury in service, the disability was not shown as chronic in service, arthritis did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Private treatment records show the Veteran was not diagnosed with arthritis of the right shoulder until November 2016, decades after his separation from service and decades outside of the applicable presumptive period. While the Veteran is competent to report having experienced symptoms of should pain since service, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of arthritis and impingement syndrome that are residuals of the injury sustained in service. The Veteran has not demonstrated the necessary medical expertise. The issue is medically complex, as it requires knowledge of the interpretation of complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Board gives more probative weight to competent medical evidence, which establishes that his current symptoms are instead attributable to age and the Veteran's multiple years of employment in physical labor. This was the determination of the most recent VA examiner. The two VA opinions from February 2017 and September 2021 are the only nexus opinions in the record. The Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993); see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). As such, there is no basis upon which service connection may be established. (Continued on the next page) In conclusion, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for right shoulder disabilities, 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. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph P. Gervasio 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.