Citation Nr: 21075902
Decision Date: 12/21/21	Archive Date: 12/21/21

DOCKET NO. 16-51 527
DATE: December 21, 2021

ORDER

Service connection for left shoulder disability is denied.

FINDING OF FACT

The Veteran's left shoulder disability was 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 left shoulder disability are not 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 June 1983 to February 2006. The Veteran has had a 100 percent combined disability rating since February 19, 2014.

This appeal comes to the Board of Veterans' Appeals (Board) from a May 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. 

In November 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. 

The Board then remanded the claim in February 2020, February 2021, and in July 2021, for further development. The Board finds that there has been substantial compliance with its prior remand. See Stegall v. West, 11 Vet. App. 268 (1998).

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800(c). 38 U.S.C. § 7107(b).

Entitlement to service connection for left shoulder disability, to include degenerative arthritis.

The Veteran contends that his current left shoulder disability had its onset during service. See Hearing Transcript at 10-11 (November 2019). The Veteran further maintains that he has left shoulder arthritis and that it manifested while in service. See Correspondence (February 2014). 

The Board concludes that the preponderance of the evidence weighs against finding that a left shoulder disability began during service or is otherwise related to an in-service injury or disease. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a), (d).

The Board also concludes that the preponderance of the evidence weighs against finding that arthritis of the left shoulder manifested in service or to a compensable degree within the applicable presumptive period; or that was noted in service with continuity of symptomatology thereafter. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).

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).

Turning to the merits of the claim, service treatment records reflect complaints of left shoulder pain and weakness. For instance, retirement examination report, dated in July 2004, reveals that the Veteran reported left shoulder pain. In a retirement report of medical history, dated in August 2005, the Veteran reported left shoulder pain, no prior treatment for the pain, and that the pain occurred "when under medium-heavy workload." 

Post-service medical records reflect that the Veteran initially sought VA treatment in March 2008. In this regard, VA treatment record, dated in March 2008, shows that the Veteran reported, with regard to the musculoskeletal system, experiencing pain in the wrist and feet. Physical examination of the extremities revealed no edema, deformity, and good muscle mass and tone. The Veteran was assessed with, among other things, wrist pain, knee pain, and ankle pain. The treatment record, nevertheless, is absent for complaints, treatment, signs or symptoms, as related to the left shoulder. Private treatment record, dated in March 2014, reflects that the Veteran reported pain and cramps in the shoulders with prolonged strenuous activities. Treatment records, thereafter, continue to show complaints and treatment related to the left shoulder. Radiology report, dated in March 2020, reflects a negative left shoulder impression. In this regard, the report reveals that the Veteran's left shoulder was found to have no fracture or other significant bone, joint, or soft tissue abnormality. 

VA examination reports, dated in March 2020 and April 2021, reflect that the Veteran was diagnosed with left shoulder strain. The March 2020 VA examination report, additionally, shows that imaging studies were conducted, and the left shoulder was negative for degenerative or traumatic arthritis. 

VA medical opinion, dated in September 2021, and addendum VA medical opinion, dated in October 2021, reflect the conclusion that the Veteran's left shoulder disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. (Hereinafter VA Medical Opinion).

The Board finds the VA Medical Opinion of high probative value. The probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his or her knowledge and skill in analyzing the data, and the medical conclusion reached. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a medical professional provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

Here, the Board finds the VA Medical Opinion of high probative value for the following reasons: The medical opinion is based on sufficient facts and data (e.g., the Veteran's lay statements, in-service and post-service medical records); the medical opinion is the product of reliable principles and methods; and the result of principles and methods reliably applied to the facts. See Nieves-Rodriguez, 22 Vet. App. at 302 (citing to Federal Rules of Evidence on expert witnesses). Further, the VA Medical Opinion contains clear conclusions with supporting data, and also a reasoned medical explanation connecting the two. Id. at 301. The clinician, in forming his conclusion, considered the Veteran's in-service and post-service medical records, which collectively, did not reveal that his current disability was related to service. The opinion also shows that physical therapy records were considered; the clinician, however, found them of low persuasion as the records did not reveal "an intrinsic shoulder problem." The opinion, moreover, adequately explained why the clinician disagreed with the Veteran's theory of causation and provided a discussion of the relevant and significant medical history, clinical findings, medical knowledge and literature that support the negative medical opinion and conclusion. The VA Medical Opinion, in consideration of the record, to include the lay statements, shows that the clinician found the Veteran's contention that his disability stemmed from service of diminished or low persuasion. The Board, therefore, finds the VA Medical Opinion of high probative value as it is based on an accurate medical history and provides a sufficient explanation that contains clear conclusions and supporting data. Further, there is no competing medical opinion of record. Accordingly, the Board finds that the VA Medical Opinion is dispositive of the issue at hand.

The Board notes the lay statements of record, to include from the Veteran and his spouse. The Veteran, and his spouse, is competent to report his symptoms associated with his disability, to include pain. However, the Board finds that they are not competent to opine on the etiology of the Veteran's symptoms given that the disability was not shown as chronic in service and because they lack the requisite medical expertise to formulate a medical opinion on whether his disability is related to an in-service injury or disease. In sum, this is a complex medical determination beyond the ken layperson that cannot be answered based on observation or analysis of a layperson. Indeed, this is an intricate matter that requires medical education and knowledge, beyond the ken layperson, regarding the unseen and complex processes of the development of a musculoskeletal disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Therefore, the Board finds that the lay statements of record, to include the Veteran's testimony, cannot be accepted as competent evidence sufficient to establish service connection, and, thus, their medical opinion in this matter has no probative value.

In addition, to the extent that the Veteran argues that any chronic left shoulder disability had its onset in service, the Board finds the statements less than credible. Moreover, to the extent that the Veteran maintains that any arthritis of the left shoulder manifested to a compensable degree within the applicable presumptive period, or that he experienced continuity of symptomatology, the Board also finds those statements less than credible as they are inconsistent with the other evidence of record. See Pond v. West, 12 Vet. App. 341 (1999) (although the Board must take into consideration a claimant's statements, it may consider whether self-interest may be a factor in making such statements); see also Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd, 78 F.3d 604 (Fed Cir. 1996) (holding that, in weighing credibility of lay evidence VA may consider such elements as interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, desire for monetary gain, and demeanor of the witness). First, with regard to the Veteran's contention that his arthritis of the left shoulder manifested while in service or to a compensable degree within the applicable presumptive period, or that he experienced continuity of symptomatology, the Board finds those statements less than credible as they are inconsistent with the March 2020 radiology report, March 2020 VA examination report, and April 2021 VA examination report. The Veteran, here, has not provided the Board with competent evidence demonstrating arthritis of the left shoulder. Indeed, as mentioned above, a March 2020 radiology report, revealed no fracture or other significant bone, joint, or soft tissue abnormality of the left shoulder. Next, with regard to the Veteran's contention that any chronic left shoulder disability had its onset in service, the Board also finds those statements less than credible as it is inconsistent with the separation examination report. Further, as noted above, VA treatment record, dated in March 2008, is absent for left shoulder symptomology, to include signs or symptoms of degenerative arthritis. The Board observes that this treatment record is of significant value because the Veteran was establishing initial care with VA. In this regard, in establishing VA care, the VA provider becomes familiar with a patient's past medical history, current health issues, and family history. Of note, the treatment record is absent of any reported left shoulder symptomology, to include a past history for degenerative arthritis. Thus, given the above, the credibility of the Veteran's statements is discounted. See Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) ("Credibility does not necessarily hinge on the declarant's intent. A statement may be untrue (and, thus, not credible) because of lack of knowledge, faulty memory, garbled expression, or other reasons, notwithstanding the declarant's intent to speak the truth."). Lastly, the Board takes notice of the absence of corroborating evidence and the Veteran's strong financial incentive to misstate. An absence of corroborating evidence and personal interest may factor into the Board's credibility analysis, so long as it is not the sole base for finding the Veteran not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board may "weigh the absence of contemporaneous medical evidence against the lay evidence of record," but "cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"); Caluza, 7 Vet. App. at 511 ("The credibility of a witness can be impeached by a showing of interest."); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (explaining that, although the Board "cannot ignore appellant's testimony simply because appellant is an interested party," it may take pecuniary interest into account when assessing the appellant's credibility). Here, contemporaneous medical evidence, in-service and post-service, as discussed above, go against the Veteran's assertion that any chronic left shoulder disability having its onset in service; further, the contemporaneous medical evidence of record goes against the Veteran's contention that any arthritis of the left shoulder manifested while in service or to a compensable degree within the applicable presumptive period, or that he experienced continuity of symptomatology since. 

Given the above, the competent, credible, probative evidence of record does not reflect that any chronic left shoulder disability had its onset in service or is otherwise etiologically related to an in-service injury or disease. Further, the competent, credible, probative evidence of record does not show that any arthritis of the left shoulder manifested while in service or to a compensable degree within the applicable presumptive period, or that the Veteran experienced continuity of symptomatology.

The Board assigns greater probative value to the Veteran's in-service and post-service medical records, which contain no objective finding for any chronic left shoulder disability until numerous years after separation from service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant); Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding that the Board may take into consideration the passage of a lengthy period of time in which a veteran did not complain of the disorder at issue); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (finding that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). The Board additionally assigns greater probative value to the VA Medical Opinion than to the Veteran's uncorroborated medical opinion because the VA Medical Opinion was prepared by a trained medical professional, reflects a review of the claims file and cites to specific information in the claims file. Moreover, the opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez, 22 Vet. App. at 304. It is clear from the VA Medical Opinion that the clinician reviewed the Veteran's claims file and considered the subjective complaints of the Veteran. Also, the VA Medical Opinion is supported by a rationale that the Board can use to weigh against the other evidence of record.

On balance, the weight of the evidence is against the claim.

Accordingly, the claim is denied. There is no doubt to resolve. See 38 U.S.C. § 5107(b). 

 

C.A. SKOW

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	A. Griffey, 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.