Citation Nr: 21076318 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 16-42 874 DATE: December 23, 2021 ORDER The claim for entitlement to service connection for a right shoulder disability, including aggravation of the pre-existing status post open capsular shift and subscapularis advancement to include minimal degenerative joint disease, is denied. FINDING OF FACT The currently diagnosed status post open capsular shift and subscapularis advancement did not undergo aggravation beyond the natural progression of the disability as the result of active service or as the result of the service-connected left shoulder disability. CONCLUSION OF LAW The criteria for service connection for a right shoulder disability including aggravation of status post open capsular shift and subscapularis advancement to include minimal degenerative joint disease have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.307, 3.309, 3.310 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from September 2008 to September 2014. This claim comes before the Board of Veterans Appeals (Board) from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in February 2019. A transcript of the hearing is associated with the claims file. This claim was remanded in June 2019, December 2020, and April 2021, and July 2021. The directed development having been completed, the claim is now before the Board. Service Connection At the outset, the Board observes there is no dispute that this claim involves a pre-existing right shoulder disability. The Veteran does not contend that his right shoulder disability is the result of active service. He acknowledges he dislocated his right shoulder twice in high school while playing football and underwent surgical repair prior to his entrance to active service. Rather, the Veteran contends that post-service complaints of pain, painful motion, limited motion and findings of degenerative joint disease in the right shoulder represents aggravation of the pre-existing right shoulder disability, either by active service or by his now service-connected left shoulder disability. He points to inservice complaints of chronic pain to support his contention. Unfortunately, the medical evidence does not support his claim. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection generally requires: (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a preexisting condition is noted at the time of entrance to service, service connection requires establishing that the preexisting condition permanently worsened beyond the normal progression of the disease during service. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Ward v. Wilkie, 31 Vet. App. 233 (2019). A lack of aggravation may be shown by establishing that there was no increase in disability during service or that the "increase in disability [was] due to the natural progress of the preexisting condition." 38 C.F.R. § 3.306; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). Service connection can also be granted for aggravation of a non-service-connected disability by a service-connected disability for the degree of disability resulting from that aggravation. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Important to this analysis is the that such disability need not be permanent but cannot be due to the natural progression of the nonservice-connected disease. Turning to the medical evidence, the Veteran is diagnosed with status post open capsular shift and subscapularis advancement with minimal degenerative joint disease. See 2016 VA Examination for Shoulder and Arm. In addition, service treatment records (STRs) show complaints of chronic right shoulder pain during active service. Moreover, he is service-connected for a left shoulder disability. These meet the first and second criteria under Shedden and Wallin. However, the third element, that of a showing of aggravation beyond the natural progression of the pre-existing or nonservice-connected disease, or causal nexus between the current disability and the service-connected disability, is not established. STRs show the Veteran reported the circumstances of his pre-existing right shoulder disability and 2005 surgery in his medical prescreening in May 2008 and in his August 2008 report of medical history at entrance to active service. However, he asserted he had had no problems or complications since the right shoulder surgery, and that he had returned to full mobility. The August 2008 report of medical examination prior to entrance to active service shows findings of a stable, asymptomatic right shoulder with full range of motion and a linear surgical scar. The examiner noted the Veteran was able to perform push-ups. The Veteran nonetheless failed physical standards for enlistment. A waiver of these standards was sought. Private treatment records were received, including the operative report. In a 2008 statement, the Veteran's private physician opined the Veteran was capable of pursuing activities of his choice including overhead work, provided the Veteran had no right shoulder complaints. Waiver for the pre-existing right shoulder dislocations and surgical repair was granted in September 2008, and the Veteran entered active service at the end of that month. See, generally, STRs. Thereafter, STRs show complaints of right shoulder symptoms and chronic pain but no specific right shoulder injury or treatment. In his February 2019 hearing, the Veteran attested he had not injured his right shoulder during active service. Rather, he argued he overused his right shoulder in compensating for his left shoulder disability, resulting in aggravation of his pre-existing right shoulder condition. See Hearing Transcript, pp. 9-10. VA examinations in 2016, 2020, and in February and May 2021 in aggregate recognize symptoms of pain and discomfort, limitation of use and the early development of degenerative changes in the right shoulder joint during and after active service. The 2016 and 2020 examiners opined that these symptoms and clinical findings did not represent an increase in right shoulder disability beyond the natural progression of the pre-existing condition or nonservice-connected disability, either as the result of active service or due to the service-connected left shoulder disability. In particular, the 2016 examiner explained that persistent pain, limitation of use and early development of degenerative change in the right shoulder joint represented a natural progression of the pre-existing or nonservice-connected right shoulder disability. The examiner explained that these symptoms were to be expected given the severity of the pre-military right shoulder injury and the requirement for surgical repair to restore the right shoulder stability. The examiner stated these manifestations were inherent in the natural progression of the pre-existing right shoulder disability. See July 2016 VA Examination Medical Opinion, p. 2 of 2. The 2020 examiner further explained that clinical findings of right shoulder degenerative joint disease in 2020 did not reflect any further deterioration when compared to 2016 clinical findings and pointed to the 2020 radiologist's assessment that the right shoulder was without frank glenohumeral degenerative changes and unremarkable other than for the postoperative (2005) changes. Thus, the 2020 examiner concluded that the clinical evidence showed no permanent change or increase in the Veteran's right shoulder disability that could be considered aggravation of the pre-existing right shoulder disability by either active service or the service-connected left shoulder disability. However, the 2016 and 2020 VA examiners did not consider temporary increases in disability as required for analysis of aggravation beyond the natural progression of the disability under the second prong of secondary service connection. See Ward v. Wilkie, 31 Vet. App. 233, 240 (2019). Subsequent to February and May 2021 remands, addendums provided in February and May 2021 referred to temporary aggravation in considering secondary service connection. The February 2021 examiner noted that temporary increase in disability was probable. The February and May 2021 examiners affirmed their previous opinions that record showed no increase in right shoulder disability that could not be attributed to the natural progression of the pre-existing disability. They based their rationale on medical treatises, carefully documented thorough review of the medical and lay evidence, and clinical findings specific to the Veteran. However, in finding that there was no increase in right shoulder disability that could be considered the result of the service-connected left shoulder disability, the examiners continued to assert that any observed increase was not permanent. This is not the appropriate analysis for secondary service-connection under 38 C.F.R. § 3.310(b). Thus the Veteran's claim was once again returned in July 2021 for additional VA examination and analysis. In September 2021, a records review VA examination was conducted. After review of all the medical and lay evidence to include the previous VA examinations and opinions, and VA and private medical records the examiner opined the Veteran's right shoulder disability was not manifested by any increase in disability beyond the natural progression of the pre-existing and nonservice-connected status post open capsular shift and subscapularis advancement with minimal degenerative joint disease. As rationale, the examiner explained occasional pain and limitation of motion, in addition to the early development of arthritis, were part of the natural progression of the of the right shoulder disability. Moreover, the examiner observed that STRs did not show additional medical treatment for the right shoulder, or that profiles were required for the right shoulder during active service. In addition, the medical evidence, did not show increase in right shoulder disability, including instability or recurrent dislocations in the right shoulder. The examiner further pointed to the 2015 supporting statement of the Veteran's private treating physician, observing the physician did not assert complaints or findings concerning the right shoulder disability. Thus, the examiner concluded the medical evidence did not establish findings of increase in right shoulder disability outside the natural progression of the disability. The Board accepts the September 2021 VA examiner's findings and opinions as probative in this case for two reasons. First, the examiner had review of all the medical evidence including the 2016, 2020, and February and May 2021 VA examinations and medical opinions, clinical medical findings and comparisons, the 2015 private medical statement, STRs, and the Veteran's assertions including his 2019 hearing testimony. Second, the September 2021 VA examiner's analysis and findings are in compliance with Ward, in that the examiner considered both temporary and permanence increases in disability when considering whether the right shoulder disability had undergone an increase either during or as the result of active service or as a result of the service-connected left shoulder disability. The Veteran is competent to observe lay symptoms, but the record does not establish that he has the medical training or expertise to render a competent medical opinion regarding the progression of his pre-service right shoulder condition and surgery either as the result of active service or his service-connected left shoulder disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Accordingly, the Board gives more probative weight to the competent VA medical opinions as discussed above. In particular, and for the reasons above enumerated, the Board finds the 2021 VA examiner's findings to be both adequate and probative. See Nieves-Rodriguez, 22 Vet. App. 295 2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). There are no other medical findings or statements tending to show the Veteran experienced any increase in his pre-existing right shoulder disability attributed to active service that is beyond the natural progression of the disability or that he experienced any increase in right shoulder disability, permanent or temporary and attributed to the service-connected left shoulder disability that is beyond the natural progression of the disability. Accordingly, service-connection for the Veteran's right shoulder disability, to include aggravation beyond the natural progression of the pre-existing status post open capsular shift and subscapularis advancement with minimal degenerative joint disease is not warranted. The claim is denied. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bakke, Lila J. 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.