Citation Nr: 21005350 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 13-25 970 DATE: February 1, 2021 ORDER Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for benign prostatic hypertrophy (BPH) is denied. FINDINGS OF FACT 1. The Veteran does not have a current right shoulder disability that is related to service. 2. The Veteran does not have BPH that is related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for entitlement to service connection for BPH have not been met. 38 U.S.C. §§ 1110, 1117, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1998 to September 2001. This matter comes before the Board on appeal from a February 2011 Regional Office (RO) rating decision. In November 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. The issues on appeal were previously denied by the Board in a February 2018 decision. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In May 2019, the parties submitted a Joint Motion for Partial Remand requesting that the Court vacate the denials and remand the case to the Board for further adjudication. In May 2019, the Court issued an Order granting the Joint Motion. In October 2019, the case was remanded for additional development. It has now been returned to the Board. Service Connection Service connection is warranted where the evidence of record establishes that an injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a veteran must show (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, or nexus, 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). 1. Entitlement to service connection for a right shoulder disability is denied. The Veteran testified at his Board hearing that he strained his right shoulder while performing his duties as a combat engineer. He specifically noted that he strained his right shoulder while removing a belly plate (a heavy armor plate that they attached to the bottom of a vehicle to protect it from land mines). He reported that his shoulder has bothered him since that injury. (See Board hearing transcript, pages 36-40.) The Veteran’s DD Form 214 reflects that his military occupational specialty (MOS) was combat engineer. The Veteran’s July 2001 separation examination report reflects that his upper extremities were clinically normal, and he expressly denied any history of, or current, painful shoulder on the July 2001 separation medical history report. Otherwise, his service treatment records reflect that he never complained of or sought treatment for right shoulder complaints during service. The Veteran testified at his Board hearing that his service treatment records reflect that he was treated for shoulder complaints. (See Board hearing transcript, page 36.) A review of the service treatment records, however, does not reveal any record of shoulder treatment. Post-service treatment records dated from August 2001 to December 2020 are absent of any complaints, treatment or diagnosis of a right shoulder disability. A June 2010 VA joints examination report notes normal shoulder range of motion. It contains no right shoulder diagnosis. A May 2016 VA shoulder and arm conditions examination report found that the Veteran does not have a current diagnosis of a right shoulder condition. No range of motion or functional limitations were provided. The examiner noted that the Veteran had no shoulder complaints or evaluation during active duty and has never had his shoulders evaluated. A December 2019 VA shoulder and arm conditions examination report notes that the Veteran reported an onset of 1988. The Veteran reported that he strained his right shoulder while performing his duties as a combat engineer while removing and installing belly plates. He stated that his shoulder has caused pain since the initial injury and from his having to repetitively do this job. He reported that this disability has progressively worsened since onset. Based on review of the record and interview and examination of the Veteran, the examiner diagnosed a right shoulder strain, right shoulder impingement syndrome, and right rotator cuff tendonitis. The December 2019 VA examiner, a nurse practitioner, opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. In her rationale, the examiner noted that the Veteran had no right shoulder issues prior to service as evidenced by the September 1997 enlistment record of medical history. She described the Veteran’s contentions of in-service incurrence of the injury but noted that the Veteran’s service treatment records contain no evidence of complaints or treatment for any right shoulder condition, including shoulder pain. She noted there was no objective evidence to support the Veteran’s right shoulder disability having been incurred during service. An addendum to the December 2019 VA examination report was obtained in November 2020. This opinion was requested because the December 2019 VA examiner had both stated that the Veteran had injured his shoulder in service and has had symptoms ever since but also noted that there is no evidence of complaints or treatment of a right shoulder condition in service as evidenced by the service treatment records. The examiner was asked to address the Veteran’s contentions of in-service injury and subsequent symptoms. The November 2020 clarification opinion, provided by a physician’s assistant, stated that the right shoulder disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The November 2020 examiner stated that the December 2019 opinion should be disregarded. He stated that the correct response is that the Veteran had no issues related to the claimed right shoulder disabilities prior to service as evidenced by the September 1997 enlistment record of medical history. The physician’s assistant noted the Veteran’s duties as a combat engineer and described the Veteran’s report of injury and subsequent symptoms. He noted, however, that there is no evidence of complaints or treatment for a right shoulder condition, to include shoulder pain, in service, as evidenced by his service treatment records. He noted that there is no objective evidence to support the Veteran’s claim of in-service right shoulder injury in service. The Board finds the November 2020 opinion to be highly probative, as it was authored by an individual who possesses the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). It is based on review of the record and contains a rationale that discusses the facts of the Veteran’s case and reconciles the Veteran’s lay statements with the contemporaneous medical records. The VA examiner essentially found that the Veteran’s lay statements were not medically feasible. Therefore, the Board finds this opinion to be highly probative to the question at hand. The only remaining contrary opinion comes from the Veteran himself. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes that the question in this case involves whether there is a relationship between a current right shoulder disability and service, with an absence of right shoulder complaints or treatment in the service treatment records or for many years following his separation from service. The Board finds that this question is of sufficient complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. Moreover, the lay assertion of right shoulder problems in service and ever since service is not credible. Therefore, the Board finds that entitlement to service connection for a right shoulder disability is not warranted. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. 2. Entitlement to service connection for BPH is denied. The Veteran contends that his BPH is related to his military service. The Veteran’s service treatment records are absent of any complaints, findings, treatment, or diagnoses relating to the genitourinary system. The Veteran’s post-service medical records reflect no complaints of or treatment for BPH from August 2001 to December 2020. At the November 2015 videoconference hearing, the Veteran testified that he tripped and fell while trying to jump over a log as part of an obstacle course during basic training. He stated that when he fell, he landed on his private areas. As noted in the October 2019 Board remand, the Veteran underwent a VA male reproductive system conditions examination in May 2016. The resulting examination report diagnoses “[p]rostate gland injuries, infections, hypertrophy, post-operative residuals,” specifically diagnosing “BPH, urinary frequency, [and] nocturia.” It notes that the Veteran was diagnosed with BPH in 2008. It also notes that the Veteran reports that his voiding pattern has changed since 1998. It notes that “Rectal exam reveals the prostate to be puzzling enlarged benign, no suspicious nodules or irregularity, and no evidence of chronic prostatitis.” It further notes that “The exact nature of his obstructive uropathy has not been defined, and a urology consultation was recommended for further evaluation.” There was no indication that this consultation was undertaken. This claim was thus remanded to schedule a VA examination and obtain an etiology opinion. The Veteran underwent a VA examination in December 2019. Based on review of the record and interview and examination of the Veteran, the examiner opined that the Veteran’s BPH was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. As a rationale, the examiner noted the Veteran had no issues related to BPH prior to service as evidenced by his September 1997 entrance examination report. She noted that onset of BPH “was not evidenced in medical records as having incurred in or as a result of service.” She noted that his “lay statement that his voiding pattern has changed since 1998 is service is not substantiated in medical records and there is no objective evidence to support his statement.” The Board finds the December 2019 opinion to be highly probative, as it was authored by an individual who possesses the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). It is based on review of the record and interview and examination of the Veteran. It contains a rationale that discusses the facts of the Veteran’s case and reconciles the Veteran’s lay statements with the contemporaneous medical records. The VA examiner essentially found that the Veteran’s lay statements were not medically feasible. Therefore, the Board finds this opinion to be highly probative to the question at hand. The only remaining contrary opinion comes from the Veteran himself. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes that the question in this case involves whether there is a relationship between the Veteran’s current BPH, which is noted to have been diagnosed in 2008, and service, with an absence of BPH complaints or treatment in the service treatment records or for many years following his separation from service. The Board finds that this question is of such complexity as to require that individuals who provide competent medical evidence on this matter possess a level of expertise that a layperson simply does not possess. Therefore, the Board finds that entitlement to service connection for BPH is not warranted. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, the claim must be denied. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Elizabeth Jalley, 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.