Citation Nr: 21007724 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-51 757 DATE: February 10, 2021 ORDER Entitlement to service connection for a right shoulder disability is denied. FINDING OF FACT The Veteran’s right shoulder disability did not manifest or have its onset during active service, or within one year of service, and is not otherwise related to service. CONCLUSION OF LAW The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1110, 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 in the United States Army from October 1976 to March 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2012 rating decision by the Atlanta, Georgia Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran testified at an October 2019 video conference hearing held before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is associated with the claims file. This issue and the issue of entitlement to service connection for an acquired psychiatric disability, to include anxiety and depression, were remanded by the Board in January 2020 for additional development. During the pendency of the appeal, in a July 2020 rating decision, service connection for persistent depressive disorder was granted. This action constitutes a full grant of the benefits sought, and this issue is no longer on appeal. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Appropriate notice was provided in October 2010, October 2011 and January 2012. The RO associated the Veteran’s service and VA private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection on a direct basis, the record requires competent evidence showing: (1) the existence of a present disability; (2) in service incurrence or aggravation of an injury or disease; 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). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Arthritis is a listed condition. However, as there is no evidence, argument, or allegation of the currently claimed right shoulder disability within the first post-service year, the presumption is not applicable here. The Veteran asserts he injured his right shoulder in a motorcycle accident while on active duty; his service-connected residuals of fracture of left tibia and resulted from the same in-service motorcycle accident. The Veteran’s service treatment records (STRs) are negative for treatment for a right shoulder injury. The STRs reflect that the Veteran was in a motorcycle accident in July 1977 and sustained a fractured left tibia. No shoulder injury was indicated at that time Private medical records from Dr. CPR reflect treatment for complaints of right shoulder pain from August 2004 to May 2008. The Veteran was diagnosed with osteoarthritis of the shoulder region, with pain in the joint involving the shoulder region. A treatment note dated January 2008 indicates the Veteran reported his pain had been ongoing and was a result of him being in service. VA treatment records show treatment for complaints of right shoulder pain. In October 2008 the Veteran stated that he had left leg and right shoulder pain for “approximately 20+ years.” He described the pain in his right shoulder as a 7 out of 10 in intensity and reported he was offered surgery on the shoulder but refused because he was scared. He reported that he had function and use of the right shoulder but some days the pain is intermittent. The Veteran stated that all his pain is from his motorcycle accident he had years ago. In October 2011 he reported that he received an injection in his right shoulder, from a private physician, and that surgery was recommended. In July 2016 the Veteran reported he received joint injections in his right shoulder from his private physician. At his hearing in October 2019, the Veteran testified that while in service his right arm was bothering him, on rotation of the arm. The Veteran testified that his doctor, Dr. CPR, felt his shoulder condition was related to what happened in service. The Veteran underwent a VA contract shoulder and arm examination in October 2020. The VA contract examiner noted the Veteran’s diagnoses of right shoulder degenerative arthritis in 2004 and a right shoulder supraspinatus tendon tear in 2004. The Veteran attributed the onset of his right shoulder pain to a motorcycle accident in July 1977. The VA contract examiner noted that the STRs did not document evidence of right shoulder pain, injury or condition. Subjective complaints included intermittent episodes of right shoulder pain and intermittent aching/sharp sensation described as a 5 to 8 out of 10 in intensity. The Veteran stated that he follows up with a private physician and the VA, although it had been several years since he had been seen at VA. The VA contract examiner noted that an MRI revealed a rotator cuff condition. The Veteran was referred to physical therapy at the time and had steroid injections. The Veteran reported that he took meloxicam once daily and used hot/cold packs as needed for shoulder pain. He reported functional loss or functional impairment as having to “be careful about things I lift especially if its heavy.” Range of motion of the right shoulder was flexion from 0 to 80 degrees, abduction from 0 to 60 degrees, external rotation from 0 to 40 degrees and internal rotation from 0 to 30 degrees. Pain was noted on examination and caused functional loss. The VA contract examiner determined that it is less likely than not that the Veteran’s right shoulder condition was caused by an in-service injury, event or illness. The VA contract examiner noted that there was no evidence of a right shoulder injury or condition in service; the “chronicity of care for the right shoulder did not begin until many years after retiring from active duty (2003) therefore a nexus cannot be established.” Although the Veteran has expressed his belief in a connection between the motorcycle accident he experienced in service and his claimed right shoulder disability, he lacks the knowledge and training required to render a nexus opinion on a cause and effect relationship unobservable to a lay person. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Importantly, the Veteran is not reporting that he had right shoulder problems immediately after the accident; he instead says the onset of problems was gradual, necessitating application of logic and reasoning rather than simply reporting an observed cause and effect relationship. Despite the Veteran’s assertions, the evidence of record does not show that any medical professional has supported his position. His private doctor has repeated his assertions, but mere repetition of the allegations in a medical record does not transform them into competent medical evidence. LeShore v. Brown, 8 Vet. App. 406 (1995). Further, the Veteran has simply asserted his opinion, without a clear rationale or support; no probative value is given his statements beyond their worth as physical observations. Despite the Veteran’s assertions, the evidence of record does not show that any medical professional has supported his position that his current right shoulder problems are in any way related to service or a service-connected condition. The Veteran argues he sustained a right shoulder injury in his 1977 motorcycle accident. However, service records are silent for any indication of such an injury. He argues that the fact he is service connected for multiple conditions “related to this accident” is proof of extensive injuries. However, such misstates the record. In fact, only the left tibia fracture was incurred in the accident. All the other cited conditions (low back, bilateral hips, left ankle, bilateral radiculopathy) are actually secondary to the tibia, not the result of direct injury. Direct service connection for a right shoulder disability must be denied because the competent evidence of record shows that this disability was neither caused nor aggravated by service; nor does it show that the Veteran experienced symptoms of this condition that continued from service until the present. Rather, the evidence shows that the Veteran first sought treatment for his right shoulder symptoms approximately 23 years after his discharge from service, and has presented conflicting statements regarding the date of onset of his problem. There is no competent and credible opinion relating the right shoulder to service or a service-connected disability. Service connection for the Veteran’s claimed right shoulder disability is not warranted. There is no reasonable doubt to be resolved in this case. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, at 1 Vet. App. 49 (1990). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Lunger, 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.