Citation Nr: A21020542 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 190619-56528 DATE: December 27, 2021 ORDER Service connection for a right shoulder disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that a right shoulder disability was manifested during active service, is otherwise the result of a disease or injury during active service, was due to arthritis manifested within one year of discharge or is caused or aggravated by a service-connected disability of the cervical spine. CONCLUSION OF LAW The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1977 to December 1978, with additional service in the Air Force Reserves through 1985. A Department of Veterans Affairs (VA) Regional Office (RO) a rating decision was issued in June 2017. The Veteran filed a timely notice of disagreement (NOD) in May 2018 and a statement of the case (SOC) was issued in May 2019. The Veteran opted the claim into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a June 2019 VA Form 10182, Decision Review Request: Board Appeal, identifying the May 2019 SOC. Therefore, the May 2019 SOC is the decision on appeal. In the June 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. In a May 2021 statement in support of claim titled "Motion to Withdraw Appeal" filed out by his Veteran's Service Officer, there was a request to specifically withdraw the request for the hearing, which was scheduled for June 1, 2021, but did not specifically withdraw the appeal itself. A letter was sent by the Board in October 2021 asking the Veteran to clarify further whether he wished to withdraw the entire appeal versus the hearing, requesting a response in 30 days and advising if there was no response within that time frame the Board would proceed to review the appeal. The Veteran (and representative) did not respond to this letter. Therefore, the Board may only consider the evidence of record at the time of the June 2019 SOC, as well as any evidence submitted by the Veteran or his/her representative within 90 days following receipt of the withdrawal of the hearing request. 38 C.F.R. § 20.302(b). Service connection for right shoulder disability is denied. Establishing 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); 38 C.F.R. § 3.303. Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 495-97 (1997). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96. For veterans who have served 90 days or more on or after December 31, 1946, certain chronic diseases, such as psychosis, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1133; 38 C.F.R. §§ 3.307 (a), 3.309(a). A nexus between a current disability and an in-service injury or event may be established by evidence of continuity of symptomatology, if the condition is a chronic disease enumerated under 38 U.S.C. § 1101. Walker v. Shinseki, 708 F.3d 1331, 1338-40 (Fed. Cir. 2013). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303 (b). Service connection may be granted for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. The Veteran contends that service connection is warranted for a right shoulder disability. He contended in his VA Form 10182, Decision Review Request with the May 2019 SOC that there would be no documentation of pain or treatment because he tolerated more pain than the average person would, and did not complain but pushed through the pain while performing his duties as a para-recovery specialist. In the May 2017 claim he alleged he was injured during training around November 1977 and was advised to be home for 6 weeks. Since service he's had pain and limited range of motion. In a February 2019 statement in support of claim the Veteran provided more details, explaining that he injured his right shoulder while performing pull-ups in training for his duties as pararescue, and was no longer able to continue pull-ups. He stated that he rehabbed his shoulder on his own and continued with pararescue training. He was able to swim with needed fins despite the shoulder issues. He indicated that since the shoulder injury, he can't throw a football or baseball and needed to modify his arm movement when swimming freestyle. He was told he had bursitis when he was considering participating in a triathlon. Years later, an orthopedic doctor diagnosed arthritis. Since the injury he continued to have problems with right shoulder. He indicated that the left shoulder (not being claimed) gives him no problems. At an informal conference report dated in February 2019 he provided further details regarding the right shoulder. He continued to allege that he injured his right shoulder while during pararescue training in November 1977 but acknowledged that his service treatment records contain multiple references to a similar injury to the left shoulder but not the right. He did not recall ever having any issues with his left shoulder in service but that his problems have always involved his right shoulder. After his initial injury, he continued to have right shoulder discomfort and would have to favor the right side while swimming and other overhead activities as a pararescue recovery specialist in the Air Force. He also described his participation in training drills carrying a 50 to 70-pound ruck sack, jumping from aircraft into the waves while wearing heavy scuba gear, swimming, and scuba training in service. He indicated these activities compounded his right shoulder problems. During pararescues, he stated he would often have to grab and hold onto victims with his right arm as he swam them to safety. He added this safety often came in the form of a Zodiac boat, and that he would have to hook his right arm into the rescue ring that was hanging from the side of the moving boat, causing more pressure, pulling, and wear and tear on the shoulder. In this informal conference report he described continued discomfort in the right shoulder during swimming and overhead activities such as throwing a ball from the time of his military service to the present. He added that he recently underwent surgery to repair a rotator cuff and glenoid labrum tear in his right shoulder on September 19, 2018 from a private provider. He stated he does not receive any VA medical care and would attempt to obtain his surgical report from September 2018 and follow-up treatment records. His wife described meeting him in 1982 and that he has persistently mentioned having right shoulder pain throughout the 36 years she has known him. In addition to the strain on his shoulder alleged to have been caused by his rigorous training and pararescue activities in service, the Veteran and his wife suggested that his right shoulder condition also could be secondary to his service-connected cervical strain with degenerative arthritis in the February 2019 informal conference report. The question for the Board is whether the Veteran has a current disability that was incurred in or aggravated by service or absent that, was caused or aggravated beyond natural progression by service-connected disability. Service personnel records confirm the Veteran's MOS and training as a pararescue recovery specialist during his period of active duty, as well as his reserve service. He is noted to have training and experience in parachuting, dive rescue and other rescue and survival training. His reserve personnel records described him as having been in numerous rescue missions during a reporting period from November 1983 to November 1984, including high altitude rescue. Service treatment records show that the Veteran was treated in December 1977 for a muscle strain of the left shoulder, with an assessment of chronic stain left deltoid. He was noted to be involved in intense physical conditioning. He was put on profile for one month. A December 1983 record from his reserve service documented recurring cervical spine pain relating to whiplash from a parachute jump in 1978. Other records from December 1983 noted a history of cervical strain from a jump from a helicopter in 1978 with a history of it resolved until it recurred six weeks ago. He had no injury but was noted to be a fireman and does physical labor and he also continued to work in Air Force reserve unit and does periodical jumps with his training. He was thought to have a cervical strain. No mention of shoulder problems was made. . None of the service treatment records or examination reports documented any issues with the right shoulder. Repeatedly on periodic examinations throughout his Reserve service including August 1979, August 1980, September 1982, September 1984, and July 1985 the Veteran reported being in good or excellent health and repeatedly denied having a painful or trick shoulder. Post-service records show that the Veteran was examined in January 2016 (as enclosed as an attachment to a May 4, 2017 doctor's letter signed by B.D. MD) for right shoulder pain of six months duration, with no injury. The Veteran denied any specific trauma to his shoulder including no falls, but did perform heavy and repetitive activities. He described pain in the AC joint as well as clicking and grinding sensation at times. He was dissatisfied with his level of function and the fact that he had discomfort six weeks after onset. Evaluation revealed normal range of motion and sensation and generally unremarkable findings except for tenderness of the acromioclavicular (AC) joint. X-ray revealed right shoulder AC joint degeneration and right shoulder osteoarthritis. In September 2018 the Veteran underwent right shoulder arthroscopy with extensive debridement. Right shoulder arthroscopy with subacromial decompression. He also underwent right shoulder open distal clavicle resection. On one week postoperative followup for a diagnosed right shoulder pain and primary osteoarthritis of the shoulder and partial thickness rotator cuff tear, he was doing well, and plans were to start physical therapy to work on range of motion exercises. He continued to be doing well on five week follow up in October 2018 and was assessed with history operative procedure on shoulder, localized primary OA of shoulder region, partial thickness rotator cuff tear, and shoulder pain. On followup in January 2019 he continued to carry the diagnosis of osteoarthritis of the shoulder and partial thickness rotator cuff tear. An April 2019 VA examination diagnosed degenerative arthritis affecting the bilateral shoulders. The date of diagnosis for the right (and the left) shoulder was April 12, 2019. Other diagnoses included right shoulder status post arthroscopic debridement and distal clavicle resection again with the date of diagnosis April 12, 2019. The Veteran was noted to be seeking service connection due to right shoulder injury in service. The examiner reviewed the claims file and noted that there were no complaints regarding the right shoulder, but rather the records showed in-service complaints with his left shoulder. In the examination, the Veteran described an injury doing pull-ups while in the service engaging in training for pararescue, which is a swimming rescue diver who has to spend minutes to hours in the water in severe conditions requiring frequent reaching to pull himself and swim against strong resistance. He reported that this was causing him pain, so they gave him one month off, after which he returned and completed the swimming portion and the pararescue program without any problems. He said that he was able to lift weights during the one month off and do some rehabilitation avoiding pull-ups. The Veteran and his wife believed that his right shoulder was involved. He did not recall whether it was the right or left shoulder and didn't remember ever injuring his left shoulder. The examiner remarked that review of the records was very clear that this was the left shoulder not the right. After the injury he returned to normal activity and was never seen for his shoulder he believes until around the 1990s when he experienced right shoulder pain when he was training for a triathlon. The swimming portion started to cause some pain in the right shoulder. He was seen by an orthopedist who told him he had some bursitis. He let this calm down and had no problems with that until he saw Dr. B.D. in 2018. The documentation from this doctor showed that he saw the patient for right shoulder pain without any history of injurious episode or trauma to the right shoulder, but he had 6 months of pain. He was treated conservatively and then eventually had surgery with an arthroscopy for decompression with debridement of the right shoulder in the subacromial space and distal clavicle resection for known arthritis of the acromioclavicular joint on the right shoulder. The Veteran reported he hasn't any problems with his unclaimed left shoulder. He believed that he has recovered from the right shoulder surgery and had no complaints. When asked if he has symptoms in his right shoulder, he stated that the shoulder can have some popping, without any pain associated with this. He believed his motion has returned to normal. He denied any symptoms or problems with lifting carrying bending or twisting with either of his shoulders. He has returned to normal activity at home for ADLs and he had no assistive devices. His work history showed that after leaving active duty in 1978 he stayed in the Para-Rescue for the Air Force reserves until 1985. During this time he completed his annual training in Rescue swimming without any problems. He stated that his civilian job was a surveyor and then he went into equipment repair for rafts. For years he worked for the fire department and eventually semiretired, becoming a driver for medical company doing pickup and delivery of specimens. He has been off of work since the surgery on September 19, 2018. He reports that he can go back to work but the only reason that he was in the office was because he's had some vertigo symptoms. He was not limited in any activity by the shoulders. On examination, he was noted to be right handed. He denied flareups or functional loss. His right shoulder initial range of motion (ROM) was described as abnormal. From a starting point of 0 degrees he had 165 degrees flexion (180 normal), 180 (normal) abduction, 90 (normal) internal rotation, 70 internal rotation (90 normal). There was no pain on examination, no pain on weight bearing, no localized tenderness or pain on palpation, no crepitus. There was no change after 3 repetitions. The examination is medically consistent with the Veteran's statements describing functional loss with repetitive use over time. His muscle strength was normal 5/5, with no atrophy or ankylosis. Although rotator cuff conditions were suspected, all tests for rotator cuff conditions or other tendon ligament conditions were negative. No shoulder instability, dislocation or labral pathology was suspected. There was no shoulder instability, dislocation or labral pathology suspected, no clavicle, scapula, acromioclavicular (AC) joint or sternoclavicular joint condition suspected, and no condition or impairments of the humerus. He did have a surgical history of arthroscopic debridement with decompression and distal clavicle resection in September 2018 with no residuals. Mild degenerative changes were noted on x-rays and this is consistent with age and are not symptomatic on exam. There was no evidence of pain examination of the right and left shoulders, and he was nontender to palpation about the entire musculature and bony architecture of the right and left shoulders. He had no pain with active passive motion, weightbearing and non-weightbearing on both shoulders. He had some restriction in range of motion on total elevation and internal rotation, which was consistent with his age and his work history. he has no pain on exam. The arthritis was age related and not symptomatic on exam. other than stiffness in total elevation. This was considered a normal variant for his age as he has no pain on any movement passive or active and repetitively bilaterally without changes. The surgical treatment on the right shoulder resolved his complaints of AC joint pain and he was non-tender to palpation over the AC joint bilaterally. He described himself as unlimited without flares in bilateral shoulders. Following the examination, the examiner gave an opinion addressing both direct and secondary service connection claims for the right shoulder disability. Regarding direct service connection the examiner determined that the claimed right shoulder disability was less likely than not (less than 50% probability) incurred in or caused by the claimed in-service injury, event, or illness. In the rationale the examiner explained that the review of record is consistent that the left shoulder was seen not the right shoulder, although he and his wife had lay statements believing that the right shoulder was injured. The examination done did not reveal any specific trauma related deficits to the right shoulder. The Veteran was noted to have left the service active duty in 1978 December 24 without any complaints of right or left shoulder pain. He was able to stay in the Air Force reserves in the rescue swimmer occupation and would have to pass annual tests in the water with extreme forces on both shoulders with no deficits or problems doing this. In 1985 he left the Air Force reserves without any complaints of shoulder pain. The first time any documentation for right shoulder pain is found is listed by the Veteran himself while he was training for a triathlon in the mid-1990s, ten years after any rescue swimming activities, when he developed right shoulder pain and was diagnosed with bursitis. He reported that after he stopped training for the triathlon, this healed without any deficits. Then he was noted to have been treated by his private orthopedist years later with the arthroscopy surgery shown in the records to have taken place in 2018 which was said to have returned him to normal. There is no evidence to suggest a right shoulder injury in service and the documentation is clear that this is left shoulder not right that was injured. It is clear that he also had an injury in 1990 with bursitis and this was after the service and all service activity and unrelated. The documentation from his private orthopedist is also consistent that the onset of his acromioclavicular joint pain was greater than 4 decades after any complaints of shoulder pain in active duty in 1977/78 timeframe. Therefore the right shoulder is not at least as likely is not related to any accident or injury and the service from his neck or right or left shoulder as he returned to normal before he left the service and after leaving the service, he had no deficits with extreme use of both shoulders in rescue swimming for the next 8 years. Regarding secondary service connection the examiner opined that the right shoulder disability is less likely than not proximately due to or the result of the Veteran's service connected cervical spine disability. In the rationale, the examiner noted that the Veteran's complaints of right shoulder pain were treated surgically, and the surgical treatment of the shoulder resolved his symptoms and therefore there is no connection between his cervical spine pain in his right shoulder. Therefore the right shoulder is not at least as likely is not secondary to his cervical spine strain with degenerative arthritis. The examiner further opined that the Veteran's right shoulder condition is not at least as likely is not aggravated beyond its natural progression by his service connected cervical spine strain and degenerative arthritis. The examiner stated that a baseline level of severity of the diagnosed disability could not be established as he was noted to have left the service without any complaints of shoulder pain on the right or left side, he was able to complete physically demanding activity as a service rescue diver without complaints or limits on both shoulders. Therefore, the baseline is that he is normal leaving the service with respect to his shoulders. Regardless of an established baseline, there was no aggravation beyond natural progression as he does not have any complaints that his neck caused any shoulder pain or limits. There is no treatment for the neck that causes any change in any shoulder complaints. The shoulder complaints on the right shoulder were treated surgically on the right shoulder and this resolved all of his symptoms on his right shoulder. This is consistent that there is no compensatory mechanism from his cervical spine, therefore the right shoulder is not aggravated beyond normal progression by his service connected cervical spine strain with degenerative arthritis. These are unrelated and independent diagnoses, and the right shoulder is asymptomatic at this time. The preponderance of the evidence is against a finding that service connection is warranted for a right shoulder disability either on a direct basis or as secondary to a service-connected cervical spine disability. In so concluding, the Board assigns significant credibility to the April 2019 VA examiner's opinions, as stated in detail above. These opinions finding that the right shoulder disability was neither related to service including any incident therein and was neither caused nor aggravated by service connected cervical spine disability were supported by adequate rationale. The examiner based the rationale on the medical history in the record and considered the lay history of the Veteran and his wife. The examiner pointed out that the left shoulder was shown to be treated in service, rather than the right shoulder, and further pointed out that the Veteran admitted that he not recall whether it was the right or left shoulder that was injured in service. The examiner further provided adequate rationale regarding aggravation as discussed above, which is further supported by the examiner's description of the arthritis as a natural age related progression and having no residuals of the 2018 surgery. Therefore, the Board finds that the preponderance of the competent and credible medical evidence does not support a finding of a nexus between the Veteran's psychiatric disorder and his active military service. There is also no evidence of a psychosis manifest within the first post service year. Finally the preponderance of the evidence is against a finding that the Veteran's right shoulder disorder is caused or aggravated by service-connected cervical spine disability. The Board acknowledges that the Veteran himself has claimed his right shoulder disorder is directly related to his active service or secondary to his service connected cervical spine disability. He is noted to have alleged having ongoing pain in his right shoulder after service, to include his Reserve service, which the Board concedes included periods where he had active periods of service as a pararescue recovery specialist participating in rescues under extreme physical conditions. However, some inconsistencies in this lay history are borne out by the fact that in his periodic examinations throughout his Reserve service, he reported being in good to excellent health and denied any shoulder issues. Furthermore he admitted to only having post service shoulder problems in the 1990s while training for a triathlon in the April 2019 VA examination and did not report a history of ongoing pain when he was seen by a private orthopedist in January 2016 when he only reported a six month history of pain. While the Veteran is competent to report (1) symptoms observable to a layperson, e.g., pain; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, his lay assertions of medical diagnosis or etiology are afforded little probative value and cannot constitute evidence upon which to grant the claim for service connection. Latham v. Brown, 7 Vet. App. 359, 365 (1995). In sum, the Board concludes that the preponderance of the evidence of record is against the Veteran's claim for service connection for a right shoulder disorder on a direct or secondary basis. There is also no evidence of the right shoulder arthritis being manifested within one year of his discharge from active service, thus the presumptions under 38 C.F.R. §§ 3.307 (a), 3.309(a) are not for consideration. The benefit-of-the-doubt doctrine enunciated in 38 U.S.C. § 5107 (b) is not applicable, as there is no approximate balance of evidence. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Eckart 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.