Citation Nr: 21077334 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 12-17 730 DATE: December 29, 2021 ORDER Service connection for a chronic right arm/shoulder disorder is denied. FINDINGS OF FACT 1. The Veteran served on active duty from September 1969 to September 1971, with additional service in the National Guard; he had been 100 percent disabled since June 2010. 2. The Veteran died in December 2018; his surviving spouse has been properly substituted for this appeal. 3. A chronic right arm/shoulder disorder, diagnosed as degenerative joint disease (DJD) of the right shoulder and rotator cuff tear and right bicipital tendinitis, did not occur in service, did not manifest to a compensable degree within a year following separation from service, and symptoms were not continuous from service. A right arm/shoulder disorder was not causally or etiologically related to service. CONCLUSION OF LAW A chronic right arm/shoulder disorder was not incurred in service and is not presumed to have been incurred in service. 38 U.S.C. §§ 1110, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board remanded the issue in October 2014, April 2018, September 2020, and June 2021. The Veteran initially claimed service connection for a right arm injury. Throughout the appeal period, the Veteran, appellant, AOJ, and the Board have treated this as encompassing both right arm and shoulder disorders. The claim is broadened to address both. Clemons v. Shinseki, 23 Vet. App. 1 (2009). Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. Turning to the evidence, the first element of service connection a current disability was met, as an August 2021 VA examiner confirmed the Veteran's diagnoses of an acromio-clavicular (AC) DJD and a right shoulder rotator cuff tear from a March 2011 MRI. Additionally, a June 2010 VA examiner diagnosed the Veteran with right bicipital tendinitis. As such, the first element is met. Next, the second element an in-service incurrence is not shown, as a review of the service treatment records (STRs) show no complaints of any right arm or shoulder symptoms, no diagnosis of any right arm or shoulder disability, and no treatment for any right arm or shoulder injury. The September 1971 separation examination did not show any shoulder or arm injuries. Further, medical examinations in February 1986, August 1990, and September 1990 pursuant to National Guard service all failed to document any pain or diagnoses for any right arm/shoulder disorder. In a September 2011 statement in support, the Veteran claimed that he the right arm condition was due to a fall running from enemy attacks while serving in Vietnam. This statement is not supported by the evidence. Of note, the DD-214 does show that the Veteran had service in Vietnam but does not show combat service or any medals or decorations denoting combat with the enemy. Additionally, neither he nor the appellant made any additional statements regarding engaging with the enemy in combat. The service-connected PTSD was predicated on fear of hostile enemy activity, but not direct combat from which the incident he described in this statement could occur. The appellant submitted a September 2019 statement from another servicemember who described the Veteran telling him in October 1971 that he fell on active duty and hurt his arm. The servicemember did not relay that this was in a combat situation. In contrast, the Veteran relayed in a February 2018 Form 9 and the appellant repeated in an August 2020 Form 9 that the Veteran hurt his right arm/shoulder visiting a VA outpatient clinic for treatment of his nervous disorder, which would have occurred after service. Thus, the combat presumption does not apply. Collectively, the medical evidence does not show a in-service incurrence, and the lay recollections provided by the Veteran and appellant throughout the appeal period are inconsistent and thus given limited probative value. As such, the second element is not supported by the evidence. Further, the third element a medical nexus is also not shown, as no medical professional has opined that the Veteran's right arm/shoulder disorder was caused by active duty. An August 2021 VA clinician found it was less likely than not that the Veteran's disabilities were caused by active duty because there were no complaints of arm or shoulder pain during active duty from 1969 to 1971, a February 1986 enlistment evaluation he indicated he had no painful or trick shoulder or elbow, a September 1990 Report of Medical Examination showed that the upper extremities were normal, and in a corresponding September 1990 Report of Medical History he again indicated no painful or trick shoulder or elbow. The appellant submitted a statement from a Veteran's former treating private physician in September 2019 that restated that the Veteran maintained that his arm was hurt due to a fall he received while on active duty. The statement did not include a medical opinion from this physician. As there is no positive medical nexus opinion, and the VA and private treatment records in the claims file do not dispute this finding, the third element is not met, and the medical evidence does not support service connection on a direct basis. As to presumptive service connection under 38 C.F.R. §§ 3.307 and 3.309, the Veteran was not diagnosed with a chronic disease during service, nor did one manifest to a compensable degree in the year following separation from service. As to continuity of symptomatology, the Veteran and appellant maintained that he had symptoms of right arm pain since separation. However, as noted above, he was inconsistent in describing the onset of these symptoms, at one point detailing that his right arm was injured when he slipped and fell on the way to a clinic post-service rather than in service. Further, while the claim has encompassed both complaints of right arm and right shoulder pain, the only chronic disease for which he was diagnosed is the DJD of the right shoulder. In the August 2010 claim, the Veteran described a right arm injury, and the statement from a fellow service member submitted in September 2019 also described the Veteran discussing hurting his arm and arm pain, rather than shoulder pain. In addition, the February 1986 and two September 1990 medical evaluations all showed no complaints of shoulder or arm pain. Collectively, the medical evidence does not show continuous symptoms of shoulder pain since separation from service, and the lay assertions are inconsistent. As such, continuity of symptomatology is not found, and the medical evidence does not support service connection on a presumptive basis. Here, the Board is not only relying on the absence of evidence, but also on the contemporaneous medical records that specifically show that the Veteran had denied arm and shoulder pain. To the extent that the appellant asserts that the Veteran had a chronic right arm or shoulder disorder related to service, the Board finds that the current assertions made during the appeal period for VA compensation purposes are given less probative weight, because they are contradicted and outweighed by the more contemporaneous lay and medical evidence, including the Veteran's own statements made seeking medical care. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Coburn v. Nicholson, 19 Vet. App. 427, 432 (2006) (Board may reject such statements of the veteran if rebutted by the overall weight of the evidence). While the Veteran, appellant, and fellow servicemember who provided the September 2019 statement have reported he had arm or shoulder pain since 1971, the clear denials by the Veteran or from physicians conducting medical evaluations in 1986 and 1990 regarding experiencing arm or shoulder pain, and the statement that it began following a fall outside a VA clinic while not on active duty, is not competent or credible lay evidence of the existence of a chronic right arm or shoulder disorder. Based on the above, the evidence does not support the appeal, and the service connection is denied. Finally, the appellant has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Brendan Evans, 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.