Citation Nr: 21005273 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 11-20 299 DATE: February 1, 2021 ORDER Entitlement to service connection for a bilateral shoulder disorder is denied. FINDING OF FACT The Veteran’s bilateral shoulder disorder 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 bilateral shoulder disorder 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 January 1977 to January 1999. In a February 2019 decision, the Board declined to grant both entitlement to service connection for a bilateral shoulder disorder and entitlement to service connection for an acquired psychiatric disorder. A November 2019 Court of Appeals for Veterans Claims (CAVC) order vacated the Board’s decision regarding these issues and adopted a Joint Motion for Remand (JMR) for reconsideration of the Veteran’s claim. The issue of entitlement to service connection for an acquired psychiatric disorder was later granted and is not currently before the Board. The November 2019 JMR determined that although in its April 2017 remand the Board requested any VA treatment records since February 2010, and VA fee-basis physical therapy records, it did not appear that VA attempted to obtain any such records, and the Board did not address in its February 2019 decision whether such records had been sought. And that a remand was required for the Board to address whether VA has substantially complied with the previous remand instructions and whether further development is needed. Stegall v. West, 11 Vet. App. 268, 271 (1998). In April 2020, the Board remanded the issues to the Agency of Original Jurisdiction (AOJ) to ensure compliance with the November 2019 JMR. The AOJ attempted to locate VA fee basis physical therapy records. The AOJ determined that the records could not be located and all efforts to obtain the needed information had been exhausted, and based on the facts, is was determined that further attempts to obtain the records would be futile. Additionally, the AOJ provided the Veteran detailed notice of the efforts made to obtain the records and requested the Veteran provide any additional treatment records he may have. Lastly, the Veteran stated he did self-taught therapy at a gym, but it is self-directed, and that the gym does not have any records his therapy. The Veteran requested that the VA please review the file and take appropriate action. See September 2020 VA 21-0820 Report of General Information. Therefore, the Board finds that the VA has substantially complied with the remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board’s remand instructions were substantially complied with). The issue of entitlement to service connection for a bilateral shoulder disorder is once again before the Board. 1. Entitlement to service connection for a bilateral shoulder disorder The Veterans seeks entitlement to service connection for a bilateral shoulder disorder. Service connection will be granted if the Veteran has a disability resulting from personal injury or disease incurred in the line of duty, or for aggravation of a preexisting injury or disease incurred in the line of duty during active service. 38 U.S.C. § 1110; 38C.F.R. §3.303. To establish service connection, the evidence must show (1) a present disability, (2) an 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 or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A valid service connection claim requires competent evidence of a current disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). However, the presence of a disability at any time during the claim process – or relatively close thereto – can justify a grant of service connection, even where such disability has become asymptomatic. McClain v. Nicholson, 21 Vet. App. 319 (2007); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Service connection for certain chronic disorders, including arthritis, may be presumed where demonstrated to a compensable degree within one year following separation from qualifying service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. For an enumerated “chronic disease” such as arthritis shown in service (or within a presumptive period under §3.307), subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. See Groves v. Peake, 524 F.3d 1306, 1309 (2008). Whenever there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107(b). The Veteran served as a supply specialist which required him to lift heavy vehicle parts. See DD 214; October 2016 Hearing Testimony. The Veteran’s service treatment records reflect treatment for bilateral shoulder pain that was diagnosed as muscle strain in March 1978. However, the Veteran’s separation examination and report of medical history noted his shoulders as normal and was marked “no” for painful or trick shoulder. Shortly after leaving service, the Veteran filed a claim for entitlement to service connection for a bilateral shoulder disorder. See March 1999 Claim. During an ensuing April 1999 VA examination, he was diagnosed with asymptomatic bilateral shoulder bursitis. During the exam, the Veteran stated he had bilateral shoulder pain in the past, but currently he was not having any issues with his shoulders. No further rational was provided. However, an April 1999 radiology examination, where multiple views of his shoulders were reviewed, reported both shoulders as normal. Following active service, the Veteran’s treatment records indicate treatment for a left rotator cuff strain in January 2009, which was improved by physical therapy. Additionally, the Veteran’s medical records note that the Veteran has limited his visits to the gym because of shoulder pain. In connection with this claim, the Veteran underwent a second VA examination in May 2017, where the examiner elicited a lay history from the Veteran, reviewed the entire claims file, and performed a physical examination. During the exam, the Veteran was diagnosed with bilateral shoulder degenerative arthritis, but the examiner found that the diagnosis was less likely than not etiologically related to service. The examiner noted in-service treatment, the April 1999 VA examination, and the Veteran’s testimony, but offered no rationale for the opinion. In August 2018, VA obtained an expert medical opinion regarding the etiology of the Veteran’s bilateral shoulder arthritis. The expert reviewed the relevant treatment records, Veteran’s testimony regarding shoulder pain, as well as the previous VA examinations. Providing a full rational, the expert determined that the medical evidence of record did not indicate that the bilateral shoulder arthritis was etiologically related to the Veteran’s active duty service, or in-service treatment for shoulder bursitis. During the Veteran’s October 2016 Board hearing, the Veteran testified he experienced shoulder pain during service and “off and on” since separation. The Board notes that the Veteran is competent to report symptoms such as pain in his shoulder, as these can be experienced through the senses (and there is no reason to doubt the credibility of his assertions); however, he is not competent to determine the etiology of his symptoms, as he lacks the requisite medical training and expertise to render medical diagnoses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Therefore, the Veteran’s medical opinion linking bilateral shoulder arthritis to service has no probative value. On review of the record, the Board finds that the most probative evidence is the August 2018 expert medical opinion. The expert opinion considered the descriptions of the Veteran’s pain and treatment in the context of the medical record. The Board finds that the medical opinion proffered is persuasive and assigns it greater probative weight than the lay statements of record. The expert opinion was rendered by a medical professional with the expertise to opine on the matter at issue in this case. The expert opinion addressed the Veteran’s contentions and based the opinions on a review of the claims folder to include consideration of the in-service history, the nature of the current disabilities, and provided a full rational. The Board finds no factual inaccuracies. Rather, the expert medical opinion thoroughly considered the Veteran’s in-service injury, treatment, lay statements, and post-service diagnosis. Also, neither the Veteran nor his agent have cited medical evidence in the record proving nexus between the Veteran’s current disability and his military service The Board also notes that the Veteran’s bilateral shoulder arthritis is a chronic disease under 38 C.F.R. §§ 3.307 and 3.309. However, there is no evidence that the Veteran’s bilateral shoulder arthritis began during service or within a year of following separation from active service. As noted by the August 2018 medical expert, the Veteran was treated for a muscle strain during service and diagnosed with asymptomatic bursitis during the April 1999 VA examination shortly after service. And an April 1999 radiological exam noted the Veteran’s shoulders as normal. The Veteran is not competent to associate such symptoms with the manifestation of arthritis in service or withing one year of discharge, and the 2018 expert that arthritis did not manifest until many years after service outweighs the Veteran’s belief that he has manifested arthritis since service. Consequently, because the elements of service connection have not been satisfied, the Veteran’s claim of entitlement to service connection for bilateral shoulder disability must be denied. As the preponderance of the evidence is against the Veteran’s claims, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Patrick C. Brady, Attorney Advisor 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.