Citation Nr: 21010320 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-42 615 DATE: February 24, 2021 ORDER Entitlement to service connection for a right shoulder disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that a right shoulder disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a right shoulder disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION This case comes to the Board of Veterans’ Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) decision dated in April 2011. The Veteran testified before the undersigned Veterans Law Judge (VLJ) at an August 2018 hearing; a transcript of the hearing is of record. This case was previously remanded to the AOJ in April 2019, for additional development, and was subsequently returned to the Board. The record reflects that the Board sent the Veteran a letter indicating that she could request a virtual tele-hearing instead of waiting for a travel board hearing. Upon further review, she does not have a pending hearing request. She provided testimony in a hearing with the undersigned VLJ in August 2018, who has considered the transcript of that hearing as evidence in making this decision. The AOJ added VA medical records and Social Security Administration records to the claims file after certification and transfer of this appeal to the Board. As these records are either duplicative or not pertinent to the issue on appeal, the Board may proceed with adjudication of the claim without prejudice to the Veteran. 1. Service connection for a right shoulder disability The Veteran contends that she incurred a right shoulder disability during active duty from 2003 to 2004 in Iraq and Kuwait as a result of having to carry a sling weapon and rucksack, and wear body armor for an entire year. She said she had right shoulder pain since 2003, and sometimes could not lift her arm over her head. See Veteran’s May 2010 statement, and August 2018 Board hearing transcript. She has stated that she was a truck driver during this period, and was shot at on a daily basis. The Veteran had active duty from February 2003 to April 2004, and additional periods of service in the Army National Guard (ARNG). The Veteran's DD Form 214 shows that her primary military occupational specialty (MOS) was motor transport operator during this period of active duty. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three elements required to establish service connection are: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Under the law, active military service includes (1) active duty, but also (2) any period of active duty for training (ADT) during which the individual concerned was disabled or died from a disease or an injury incurred or aggravated in the line of duty, and (3) any period of inactive duty training (IDT) during which the individual concerned was disabled or died from an injury, but not disease, incurred or aggravated in the line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident that occurred during such training. 38 U.S.C. § 101 (24) (B); 38 C.F.R. § 3.6 (a). As a threshold matter, “veteran” status must be established as a condition of eligibility for service connection benefits. Bowers v. Shinseki, 26 Vet. App. 201, 206 (2013) (observing that it is “axiomatic that, to receive VA disability compensation benefits, a claimant must first establish veteran status”). The Veteran had ADT from August to December 1988, active duty from February 2003 to April 2004, periods of service in the ARNG, and a period of active duty for special work (ADSW) from September 12, 2005 to January 31, 2006. ADSW is now referred to as Active Duty Support (ADS). ADS is service in which a Veteran is ordered to full-time but temporary duty for operational or support purposes for the Reserve or National Guard. Full-time National Guard service is considered ADT under 38 U.S.C. § 101(22)(C) if performed under 32 U.S.C. § 316, or 32 U.S.C. §§ 502, 503, 504, or 505. Because the Veteran’s National Guard training duty was only occasional, the onset of her claimed condition must be related to a specific period of active service or training duty. National Guard duty is distinguishable from other Reserve service in that a member of the National Guard may be called to duty by the governor of their state. Members of the National Guard only serve the federal military when they are formally called into the military service of the United States; at all other times, National Guard members serve solely as members of the State militia under the command of a state governor. Allen v. Nicholson, 21 Vet. App. 54, 57-58 (2007). Therefore, to have basic eligibility for Veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed “full-time duty” under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. See 38 U.S.C. §§ 101 (21), (22)(C); Allen, supra. To establish status as a veteran based upon a period of ADT, a claimant must establish that he or she was disabled from disease or injury incurred or aggravated in the line of duty during that period of ADT. 38 C.F.R. § 3.1 (a), (d); Harris v. West, 13 Vet. App. 509 (2000). The Board observes that the Veteran has not yet established veteran status with regard to any periods of military service other than active duty from February 10, 2003 to April 20, 2004. The fact that a claimant has established status as a veteran for other periods of service does not obviate the need to establish that she is also a veteran for purposes of the period of ADT where the claim for benefits is based on that period of ADT. Mercado-Martinez v. West, 11 Vet. App. 415 (1998). Without the status as a veteran, a claimant trying to establish service connection cannot use the many presumptions in the law that are available only to veterans. For example, presumptive periods allowing for the presumed incurrence of a condition in service do not apply to ADT or IDT, and neither do the presumptions of soundness and aggravation. See Donnellan v. Shinseki, 24 Vet. App. 167, 171 (2010); Smith v. Shinseki, 24 Vet. App. 40 (2010); Biggins v. Derwinski, 1 Vet. App. 474 (1991). Presumptive periods for service connection do not apply to ADT unless the person concerned became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of active duty for training. Acciola v. Peake, 22 Vet. App. 320, 323-324 (2008). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of chronic right trapezius strain, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of right trapezius strain began during active service or is otherwise related to an in-service injury, event, or disease. The Board finds that the Veteran has not achieved veteran status with regard to the period of ADS from September 2005 to January 2006. The preponderance of the evidence does not show that a right shoulder disability was incurred in the line of duty during this period of service. Service connection may be granted for a Persian Gulf veteran with objective indications of a qualifying chronic disability that manifested either during active service in the Southwest Asia theater of operations or to a degree of 10 percent or more not later than December 31, 2021. 38 U.S.C. § 1117(a)(1); 38 C.F.R. § 3.317(a)(1). A qualifying chronic disability is a chronic disability that may result from an undiagnosed illness or a medically unexplained chronic multi-symptom illness (MUCMI). 38 C.F.R. § 3.317(a)(2)(i). The term chronic means that the disability has existed for 6 months or more, to include intermittent episodes of improvement or worsening over that period. 38 C.F.R. § 3.317(a)(4). Here, the Veteran had active service in Kuwait and Iraq from April 15, 2003 to March 26, 2004. Therefore, she is considered a Persian Gulf veteran. 38 C.F.R. § 3.317(e). VA examinations in January 2015 and January 2020 show that she has a diagnosis of right trapezius strain. As the Veteran’s trapezius strain is a diagnosed condition, it cannot be considered an undiagnosed illness, and it is not a MUCMI because the evidence shows that it has at minimum, at least a partially understood etiology and pathophysiology. 38 C.F.R. § 3.317 (a); see Stewart v. Wilkie, 30 Vet. App. 383, 390 (2018). Accordingly, presumptive service connection is not warranted on this basis. Service treatment records during the period of active duty from February 2003 to April 2004 are entirely negative for complaints, treatment or diagnosis of a right shoulder injury or disability. A late March 2004 report of medical assessment reflects that the Veteran denied any injuries since her last assessment, and denied any injuries on active duty for which she did not seek medical treatment. She denied swollen, stiff or painful joints. In the Veteran's original April 2004 service connection claim, she did not claim service connection for a right shoulder disability, although she claimed service connection for other disabilities. Her original claim of service connection for a right shoulder disability was received in April 2010. VA treatment records show the Veteran was not treated for complaints of right shoulder pain until March 2005, nearly a year after separation from active duty service, at which time she reported she had shoulder pain for a few weeks. On examination, she had a tender posterior shoulder, and limited elevation and external rotation. A June 2005 treatment note reflects that she was given a right shoulder steroid injection for intermittent shoulder pain. On examination, the right shoulder was slightly painful at extremes of range of motion with no swelling, redness or crepitus. An X-ray study of the right shoulder was normal. In September 2005, she reported right shoulder pain for three days; she denied falls or trauma to the area. The diagnostic impression was rotator cuff strain. A September 2005 service treatment record, dated during the Veteran's period of ADS from September 2005 to January 2006, reflects that the Veteran reported she had right shoulder pain for one day. On examination, there was pain around the acromion, and good range of motion and strength. The diagnostic assessment was shoulder pain. VA outpatient treatment records reflect that in October 2005, she gave a history of intermittent right shoulder pain that started two years earlier, and initially occurred while carrying a heavy pack in service. The examiner indicated that she had a history of right rotator cuff syndrome that was resolved at present. In April 2006, she complained of tenderness to the upper right back. On examination, there was no shoulder tenderness or swelling, and range of motion was normal bilaterally. The diagnosis was upper back pain. In March 2007, she reported that intermittent upper back pain started in 2004 during service, and denied injury. She said she carried a lot on this shoulder. The diagnosis was upper right-sided back pain chronic and intermittent. In September 2010, she reported right shoulder pain for six years, while in November 2010, she reported right shoulder pain for a couple of years. An X-ray study was negative, and the diagnosis was right trapezius trigger points. While the Veteran is competent to report that she had right shoulder pain since active duty, her reports are largely not credible due to internal inconsistency and inconsistency with other evidence in the record. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Such statements made for VA disability compensation purposes are of lesser probative value when in contradiction to histories she previously provided, including her previous statements made to medical providers in the course of seeking medical treatment. See Pond v. West, 12 Vet. App. 341 (1999). The Veteran's more recent contentions are inconsistent with her prior statements to medical providers. Further, at the August 2018 Board hearing, the Veteran testified that she did not feel any right shoulder symptoms until after she got home in 2004, and never went to sick call for it. She stated that the right shoulder disability was not a chronic problem until after 2004. The Veteran’s more recent statements are also inconsistent with the medical records. Service treatment records from her period of active duty are negative for complaints or treatment of right shoulder symptoms. The Board acknowledges that the Veteran served in combat, and thus, the provisions of 38 U.S.C. § 1154 (b) apply, and the Board finds that her lay statements of straining her right shoulder by wearing body armor and heavy gear during her combat service are consistent with the circumstances of her service. However, even assuming that the injury occurred, the Veteran’s assertions are not consistent with the medical records associated with the claims file or her own in-service reports regarding her health. The Veteran’s service treatment records, including reports of examinations, appear to be complete and they likely would include reference to an in-service right shoulder injury or symptoms, including by self-report at separation, if such symptoms were present. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The Veteran underwent a VA examination of the right shoulder in February 2011, and the examiner opined that the Veteran’s chronic right shoulder bursitis was related to the shoulder pain reported in service in 2005. This opinion has no probative value as it is based on inaccurate facts. The examiner failed to note that the Veteran was treated for right shoulder pain by VA in March 2005 and June 2005, which was not during a period of service. In a March 2011 addendum, the examiner opined that the right shoulder pain noted in September 2005 during a period of ADS was the natural progress of the disease treated in March and June 2005. On VA examination in January 2015, the Veteran reported a gradual onset of right periscapular upper trapezius pain in military service related to a combination of having large breasts and wearing armor plated vests and carrying a rifle. The examiner diagnosed chronic right trapezius strain with a normal right shoulder joint but did not provide a medical opinion as to the etiology of this condition. At the January 2020 examination, the Veteran reported that she had right shoulder pain after deployment from 2003-2004, and ongoing pain in the right upper trapezius. She denied injury to the shoulder joint. The January 2020 VA examiner diagnosed chronic right trapezius strain with a normal right shoulder joint. Taken together, the VA examinations and opinions of record establish that the Veteran’s right trapezius strain is not at least as likely as not related to an in-service injury, event, or disease, including having to carry a sling weapon and rucksack, and wear body armor during her deployment from 2003 to 2004. The January 2020 VA examiner opined that the Veteran’s chronic right trapezius strain was not at least as likely as not related to wearing body armor and heavy gear during a period of active duty from 2003 to 2004. The rationale was that treatment records dated in 2005, after active duty, showed she reported pain for several weeks, there was no clear indication of shoulder pain related to the prior deployment, and her symptoms pre-dated the period of ADS. The examiner also stated that the Veteran’s report that breast reduction surgery in 2018 reduced her symptoms supports a conclusion of a heavy chest as a cause of her symptoms. The examiner indicated that the Veteran has a normal shoulder joint, and there is no indication of aggravation of a pre-existing condition during ADS. The January 2020 VA examiner’s opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes her right shoulder disability is related to an in-service injury, event, or disease. The Veteran in this case is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships. Therefore, it is outside the competence of the Veteran in this case because the record does not show that she has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, the Board gives more probative weight to the January 2020 VA examination. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. L. Wasser, 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.