Citation Nr: 21009874 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-52 938 DATE: February 23, 2021 ORDER Entitlement to service connection for a left shoulder disability is denied. FINDING OF FACT The Veteran's left shoulder condition 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; the disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1111, 1112, 1113; 38 C.F.R. § 3.303, 3.304, 3.306. 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from January 1971 to May 1972. This appeal comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) July 2016 rating decision of the Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned Veterans’ Law Judge at a December 2019 Board hearing. A transcript of the hearing has been associated with the claims file. In January 2020, the Board remanded the case to the AOJ for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Board finds that there has been substantial compliance with the January 2020 remand directives. 1. Entitlement to service connection for a left shoulder disability The Veteran claims that his current left-shoulder disability is due to an incident in basic training. Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 1153; 38 C.F.R. §§ 3.303, 3.304, 3.306. 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). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) 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). Certain chronic diseases, including arthritis, will be considered incurred in or aggravated by service if manifest to a required degree (10 percent for arthritis) within one year of service. 38 C.F.R. §§ 3.307, 3.309(a). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing service connection for the chronic diseases listed in section 3.309(a) is through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). 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 v. Gober, 10 Vet. App. 488, 495-97 (1997). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve any reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. The Veteran has a diagnosis of arthrosis of the left shoulder. See February 2020 VA examination. There is also a remote diagnosis of degenerative arthritic changes in the left shoulder in November 2001 and more recent diagnoses of left shoulder pain secondary to rotator cuff injury in August 2015; left shoulder impingement syndrome with possible acromial clavicular joint degenerative joint disease in July 2015; focal full thickness tear of the supraspinatus tendon and linear signal within the superior glenoid labrum probably representing a sub-labral foramen on December 2015 MRI; and left shoulder impingement syndrome in March 2016. As such, the Board finds that the first Shedden element necessary to establish service connection has been met. In his September 2016 Notice of Disagreement (NOD), the Veteran alleges that he injured himself in basic training in 1971, and the injury “resulted in surgery.” A review of the Veteran’s service treatment records (STRs) are absent of any complaints of shoulder issues, or treatment thereof, generally, and there is no indication the Veteran underwent shoulder surgery of any kind while in service. The Veteran did undergo surgery while serving in the military, but it was to address a gastrointestinal issue suspected to be ulcers, and was in no way related to his left shoulder. On his entrance examination, the Veteran did complain of having either a “trick” elbow or shoulder, but did not elaborate. Furthermore, the Veteran did not complain of either condition during his period of active duty service. In March 1972, after the reported basic training accident, the Veteran went before a Medical Board. At the proceedings, it was determined that the Veteran had pancreatitis, reflux gastritis, and “transient situational disturbance,” most likely due to issues coping with serving in the military. The examining physicians did not find any evidence of a left shoulder injury, nor did the Veteran claim such an injury at the time. At the conclusion of his Medical Board examination, no musculoskeletal issues were noted in general, and no shoulder conditions specifically were found. An April 1972 Physical Evaluation Board Proceedings Report includes a disability description only of duodenal ulcer disease, status post pyloroplasty and vagotomy complicated by chronic relapsing pancreatitis, etiology unknown, associated with immature personality disorder. No left shoulder disability was shown or reported. The Veteran’s post-service treatment records are absent complaints for any shoulder issues for decades after separating from the military. Although not specific to the left shoulder, comprehensive examination in June 1974 medical examination did not find any shoulder conditions, nor did a December 1980 examination. It is not until around 2001 that the Veteran began complaining of pain in his left shoulder. A November 2001 x-ray did reveal “minimal degenerative changes” in the Veteran’s left shoulder although the Board also notes that March 2004 x-rays of the left shoulder were reported to be “unremarkable”. In 2005 the Veteran sought treatment for right shoulder pain, but did not state his left shoulder had any problems. As noted, in July 2015 the Veteran was diagnosed with shoulder impingement syndrome in his left shoulder, and “possible” left acromial clavicular joint degenerative disc disease. In September 2015, the Veteran complained of long-term left shoulder pain since around 2008, and in December 2015 an MRI showed a tear in a tendon in his left shoulder. In May 2016 the Veteran submitted a statement saying his left shoulder hurt “for some time” but did not provide a timeline. As noted above, the Veteran claims that he experienced an in-service injury to his left shoulder. The medical evidence does not show that the Veteran injured his left shoulder in service resulting in chronic symptoms in service or thereafter. The Veteran’s medical record shows that he readily sought treatment for medical issues as they arose, and thus it is reasonable to expect that had the Veteran injured his shoulder he would have reported it to his medical providers. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); United States v. Vasquez, 677 F.3d 685, 692 (5th Cir. 2012). However, while the Board finds that the Veteran is competent to report that he sustained a left shoulder in service and that such pain continued after service and is the cause of this current left shoulder disability, the Board finds the credibility of such statements lacking in that the Veteran’s service treatment records are negative for reports or complaints related to the left shoulder as are contemporaneous post-service treatment records. In this regard, the Board notes that the Veteran testified that he never reported any left shoulder injury in service and while this accounts for the absence of such documentation in the Veteran’s service treatment records, this does not explain the absence of such reports for many years in the Veteran’s post-service medical records. In this regard, while the Veteran also indicated that he received private treatment after service and could not remember the provider’s particular information, the record does also contain VA and some private treatment records dating back to the 1970’s; notably, there are no complaints, reports, or documentation of a left shoulder disability for many years. And, the VA records that do document left shoulder impairment beginning in 2001 do not include any reported history of left shoulder impairment dating back to any in-service injury. Thus, even if the Board concludes that the Veteran is competent and credible to report some type of left shoulder injury in basic training in service, the Board does not conclude that the Veteran’s report on ongoing left shoulder impairment in service and after to be credible based on the evidence outlined above and as discussed further below. Further, the Board finds that there is no competent and credible evidence of a nexus between any current left shoulder condition and any incident of the Veteran’s service. While arguably the second Shedden element necessary to establish service connection has been met, the third element has not. A February 2020 VA examiner concluded that the Veteran’s current left shoulder disability is less likely than not incurred in or caused by events during the Veteran’s military, and indicated that the Veteran’s disability was more likely due to wear and tear with aging, citing to specific instances in the record and to several online authorities. The Board finds the February 2020 VA opinion to be highly persuasive and of significant probative weight regarding the issue of whether the Veteran's current left shoulder disability is related to service. The Board finds that the examiner’s stated rationale is logically supported, based on familiarity with the Veteran's relevant medical history, and is probative as to the etiology of the Veteran’s left shoulder disability. Additionally, the Board places great probative weight on the VA opinion in this case, as it is consistent with the evidence of record and based upon medical knowledge and skill, as well as a review and analysis of the Veteran's specific disability picture, to include consideration of relevant facts such as the details in the service treatment records and the post-service medical record. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012) (stating that a medical report must be read as a whole in the context of the claim and, even an opinion lacking in detail may be provided some probative value based upon the amount of information and analysis contained therein); Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (stating that medical reports must be read as a whole and in the context of the evidence of record). Furthermore, there are no contrary medical opinions of record. The Board also acknowledges the Veteran's assertions that he has had left shoulder pain since service. He is certainly competent to report symptoms such as pain. However, he is not competent to attribute any particular symptoms, including pain, as the onset of arthritis. Therefore, his opinions on the matter are not competent and lack probative weight. The competent medical evidence, such as the February 2020 medical opinion, noted that relevant literature stated that the most common cause of shoulder arthritis is due to wear and tear which occurs with aging. Additionally, the absence of post-service findings, diagnosis, or treatment for many years after service is one factor that tends to weigh against a finding of continuous left shoulder symptoms after service separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that the passage of many years between discharge from active service and the medical documentation of a claimed disability is one factor to consider as evidence against a claim of service connection). In this case, there are available medical records dating back to the 1970’s with no report of left shoulder impairment for decades. With regard to presumptive service connection, there is no probative, competent evidence of record that the Veteran's left shoulder disability manifested to a compensable degree within one year of the Veteran's discharge from service. 38 C.F.R. § 3.307 (a), 3.309(a). Instead, the probative evidence of record shows that the Veteran was not diagnosed with arthritis until decades later. See Buchanan, 451 F.3d at 1336-37; Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). As such, presumptive service connection is not warranted. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection for left shoulder disability may still be granted on a direct basis. However, the preponderance of the evidence is against finding that a medical nexus exists between the Veteran's current left shoulder disability, to include any diagnosed degenerative changes and impingement syndrome, and an in-service injury, event or disease as explained above. 38 U.S.C. § 1110; 38 C.F.R. § 3.303.   In sum, service connection for left shoulder disability is not warranted on any basis. As the preponderance of the evidence is against the claim, reasonable doubt does not arise, and the claim is denied. 38 U.S.C. § 5107 (b). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, Associate 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.