Citation Nr: 21008837 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 15-43 415 DATE: February 18, 2021 ORDER Entitlement to service-connection for left shoulder disorder is denied. REMANDED Entitlement to service-connection for right knee disorder is remanded. FINDING OF FACT The Veteran’s current left shoulder disorder is not shown to be causally or etiologically related to his military service, and arthritis is not shown to have manifested within one year from the date of his separation from active service. CONCLUSION OF LAW The criteria for service connection for the Veteran’s left shoulder disorder have not been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United Sates Army from April 1992 to January 2013. This matter returns to the Board of Veterans’ Appeals (Board) after its August 2020 remand to the Department of Veterans Affairs (VA) Regional Office (RO) which is the agency of original jurisdiction (AOJ). The Veteran and his representative appeared for a Board Videoconference Hearing (Board Hearing) on January 23, 2019, and a copy of the transcript for that hearing is attached to his file. 1. Entitlement to service-connection for left shoulder disorder The Veteran claims his current left shoulder disorder occurred while he was in and is related to his military service. Service Connection. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 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 between the present disability and the disease or injury incurred or aggravated during service-the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. For certain delineated chronic disorders, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. See 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. When a disease listed in 38 C.F.R. § 3.309(a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is one of the chronic diseases delineated in 38 C.F.R. § 3.309. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed or experienced, and which are within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). However, a lay witness is not competent to establish facts or opinions which require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The Board also notes that at times related to his different claims, the Veteran states that various VA medical examiners and other officials did not adequately address certain pieces of evidence. The Board has reviewed all of the evidence in the record in making its own decision, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as to the issues in the claim and this appeal. Evidence of Record The Veteran’s service treatment records (STRs) do show a single reference to complaints of left shoulder injury entered December 28, 1998, which noted that the Veteran sought treatment for left shoulder pain for the prior three weeks, which began during a swimming test. He was diagnosed with left shoulder sprain/ tendonitis. No additional follow-up was recorded. Thereafter, the Veteran underwent numerous physicals during the remainder of his military career, including flight physicals. At no time after the single incident in December 1998, did the Veteran mention or identify any left shoulder pain, though he did identify a number of other injuries, including orthopedic injuries. There is no notation on the Veteran’s separation physical that he had experience chronic left shoulder pain. There are no records which show that the Veteran sought treatment for any left shoulder problems, or that any applicable chronic left shoulder condition, i.e., arthritis, manifested to a compensable degree within one year after his discharge. 38 C.F.R. § 3.309(a). The Veteran’s VA treatment records first show treatment for left shoulder pain in January 2015 related to x-rays taken in response to complaints. These x-rays showed no fractures or dislocations identified. There was mild joint space narrowing of the bilateral acromioclavicular joints with the bilateral glenohumeral joints preserved and no focal soft tissue abnormalities, thus giving an overall impression of mild degenerative changes of the acromioclavicular joints. The Veteran received continued treatment thereafter, which consisted primarily of a prescription for nonsteroidal anti-inflammatory drugs (NSAIDs). The Veteran did not indicate that he sought private medical treatment for his left shoulder condition, and the record before the Board does not contain such records. The record does not contain a competent medical opinion which opines that the Veteran’s current left shoulder condition was actually incurred in or caused by his military service or that arthritis was manifested within a year after he separated from service. The Veteran was provided a VA examination for his left shoulder claim in March 2013, in which the VA examiner did not identify any diagnosed left shoulder disorders, shown on either examination or diagnostic testing. The VA examiner noted an incident in 2007 when the Veteran claimed to have suffered a sharp pain, rated as 10 out of 10, from no identifiable cause, and that he experiences a similar pain about once a year since. In the December 2019 VA examination of the Veteran’s left shoulder, the VA examiner opined that the Veteran’s left shoulder was less likely than not (less than 50 percent) due to his military service based on the rationale that there was no in-service circumstance of left shoulder injury. The Board previously found this examination to be inadequate because there was an entry in the Veteran’s service record, which was not taken into consideration and addressed by the VA examiner. In the October 2020 VA addendum opinion, the VA examiner opined that the Veteran’s left shoulder disorder was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury. This was based on the rationale which took into consideration the Veteran’s military occupational specialty (MOS) and years of service noting that the in-service left shoulder injury was acute only with no evidence of chronicity of care and that the symptoms given are subjective only. The VA examiner further relied on the fact that the Veteran’s separation physical was silent as to any left shoulder diagnosis and that his 2013 VA examination did not note any diagnosis of a left shoulder injury. Further taking into consideration the Veteran’s history of lifting weights, playing sports, etc., with later only mild change shown in the left shoulder x-ray in 2015, the VA examiner opined this cannot justify a 2019 nexus for his single December 1998 in-service acute injury. The VA examiner also opined that the Veteran’s left shoulder condition is less likely than not (less than 50 percent probability) to have had its onset in service or that it is etiologically related to his service, to include as due to his in-service duties as a helicopter mechanic. This opinion was based on the same rationale. The Veteran made numerous statements related to his left shoulder injury, including during his Board Hearing, and submitted several written statements as well. The Veteran is fairly consistent in that he asserts he hurt his left shoulder while in service while playing football and often stated that he was reaching when the injury occurred. He also explained how he did not seek treatment for what he stated was a repeated chronic left shoulder pain condition because he was very concerned that it might adversely impact his career advancement, or even his selection to become a helicopter pilot, and he also stated that when he did seek treatment he was simply given Motrin and told to return to his unit. In later statements the Veteran changed the emphasis to be that since he was merely given Motrin for his complaints of left shoulder problems, without further detailed investigation into the actual problem, he became frustrated and did not seek treatment when he has these pains as he believed nothing would be done. He also mentioned how he continually used his shoulders throughout his military career, first as a helicopter mechanic where he often needed to list parts and equipment over his head, and later as a helicopter pilot where he needed to grab handles to assist him enter into and exit the aircraft. While his post-service private medical providers did record the Veteran’s statement that he injured his left shoulder while in service, the record does not contain a competent medical opinion which opines that the Veteran’s current left shoulder condition was actually incurred in or caused by his military service or within a year after he separated from service. Analysis After review of the evidence, the Board finds that the Veteran’s entitlement to service connection for his left shoulder condition is not warranted. The Veteran’s STRs do record a single incident of treatment for an acute injury in December 1998, but there are no records of his complaints of injury or pain, treatment for, or diagnosis of any left shoulder injury thereafter, until he retired in January 2013. His various physicals performed during that time, including flight physicals, and his separation physical do not identify left shoulder injury or chronic condition, though they do contain records for treatment for numerous other injuries. The first post service imaging of his left shoulder which showed any injury was in January 2015 which showed no fractures or dislocations; mild joint space narrowing of the bilateral acromioclavicular joints with the bilateral glenohumeral joints preserved and no focal soft tissue abnormalities, with an overall impression of mild degenerative changes of the acromioclavicular joints. The Board finds the opinions of the October 2020 VA examiners to be of high probative value as they are based on a detailed review of the Veteran’s medical history, including that which occurred during service, along with a detailed rational. There are no competent medical opinions which state that the Veteran’s current left shoulder condition is related to or caused by his military service. The Board has also considered the Veteran’s lay statements. The Board notes some inconsistencies in the Veteran’s statements. Whether the Veteran injured his left shoulder playing sports or during a swimming test is largely irrelevant. The Board also notes the Veteran’s changed explanatory emphasis on why he did not seek treatment for what he states was a chronic and recurrent left shoulder pain condition, from his concern for adverse impact on his career if he were to seek medical treatment for a recurrent injury, to that of his frustration that he did seek treatment but was merely prescribed Motrin without further investigation into the extent of his injury. The Board finds the Veteran’s STRs, which were taken contemporaneously with his medical treatment, to be of higher probative value than the Veteran’s inconsistent statements that he avoided seeking treatment compared to those which imply he did seek treatment but was turned away – and for which there are no records of his seeking treatment more than the single December 1978 incident. The preponderance of the credible evidence goes against a finding that the Veteran’s left shoulder condition is related to or caused by his military service. Absent a relative balance of the evidence for and against the claim, the evidence is not in equipoise and the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, the Board finds that there is no nexus between the Veteran’s left shoulder condition and his military service. Holton, 557 F.3d at 1366. The Veteran’s claim for entitlement to service connection for his left shoulder condition is denied. REASONS FOR REMAND 1. Entitlement to service-connection for right knee disorder is remanded. As part of the August 2020 Board Remand, the RO was asked to obtain an addendum medical opinion which took into account the Veteran’s contentions that his heavy physical activities performed as a helicopter mechanic while on active duty, as well as injuries he sustained in his many years of physical fitness training. The medical opinions under review for his right knee condition were also considered inadequate as relied almost exclusively on a lack of evidence in the Veteran’s STRs to provide a negative nexus opinion. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (holding that an examination was inadequate where the examiner did not comment on the veteran’s report of in-service injury but relied on the service medical records to provide a negative opinion). The Board further notes that the Veteran has identified numerous STR entries which reference right knee injuries incurred while in -service. In his July 2, 2020 Statement in support of Claim, the Veteran lists the following dates of STR entries related to knee conditions: July 31, 1995; September 28, 1995; October 5, 1995; October 16 and 17, 1995; November 20, 1995; (the Board also notes an MRI of November 30, 1995); November 18, 1996; November 25, 1996; December 13, 1996; May 30, 1997; June 10, 1997; and September 19, 1997. The October 2020 VA examiner nether acknowledges these STR entries in the VA examination report, nor is there any analysis thereof. Therefore, the October 2020 VA medical opinions are inadequate for the Board’s purposes. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). The Board remands the matter to obtain new addendum medical opinions which take into consideration the Veteran’s complete medical history, as well as his medical history as provided in his lay statements, to include his testimony at the Board hearing. The VA examiner is to specifically address the knee injury entries in the Veteran’s STRs and reformulate the addendum opinions requested in the Board’s previous Remand which incorporates and specifically references this complete medical history. The Board regrets that another remand is required. The Veteran is to be permitted reasonable opportunity and time to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from the examiner who prepared the October 2020 addendum opinions, if available, and if not, another appropriate and qualified clinician. No additional VA examination of the Veteran is requested unless indicated by the examiner. The examiner is directed to review the Veteran’s. After review of the Veteran’s file the examiner should address the following: (a.) Does the Veteran have a current right knee disability? i. If so, for each diagnosed condition advise whether is it at least as likely as not (50 percent or greater probability) that the Veteran’s right knee disability had its onset in service or is etiologically related to service, to include as due to his in-service duties as a helicopter mechanic, or as a chronic condition for which symptoms manifested during service or within the year after his discharge from service? ii. whether it is at least as likely as not (that is, a 50 percent or greater probability) that the Veteran’s right knee disability had its onset in service or is etiologically related to service, to include as due to physical fitness training in service, for which symptoms manifested during service or within the year after his discharge from service?. A complete opinion for each of the issues identified above must include rationale that is based on a full history of the Veteran’s condition, including, but not limited to, STR entries related to the Veteran’s right knee condition, including the specific STR entries identified by the Veteran, his lay statements and testimony, as well as evidence contained within his medical records. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. 2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Bannach, Keith 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.