Citation Nr: 21011469 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 17-19 633 DATE: March 2, 2021 ORDER The claim of entitlement to service connection for a left shoulder disorder is denied. REMANDED The claim of entitlement to a disability rating in excess of 10 percent for right elbow pronation is remanded. The claim of entitlement to a disability rating in excess of 10 percent for left ankle sprain is remanded. The claim of entitlement to a disability rating in excess of 10 percent for right elbow calcific tendinosis is remanded. The claim of entitlement to a disability rating in excess of 10 percent for left knee osteoarthritis is remanded. The claim of entitlement to a disability rating in excess of 10 percent for right knee patellar bone spur is remanded. FINDING OF FACT The Veteran’s left shoulder disorder did not originate in service or within one year thereafter and is not otherwise etiologically related to service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a left shoulder disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active service with the United States Army from February 1979 to February 1982. In September 2020, the Veteran testified at a virtual hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. Entitlement to service connection for a left shoulder disorder. The Veteran contends that his currently diagnosed left shoulder disorder is related to an in-service football injury. 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-element test for service connection requires evidence of: (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). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258, 271 (2015). April 1981 service treatment records reflected treatment for a strained deltoid caused by hurting his left shoulder while working. He was treated with warm compresses and aspirin. Service treatment records are otherwise silent regarding any complaints of or treatment for a left shoulder problem. A May 2015 VA examination report confirmed a July 2014 diagnosis of left shoulder degenerative joint disease. The Veteran reported that his left shoulder pain started during service 10 years prior. The examiner opined that the Veteran’s left shoulder disorder was less likely than not incurred in or caused by service. The rationale was that the Veteran’s first reported shoulder pain was in 1981 and was treated with warm compresses and rest. Since then, the Veteran has not reported any shoulder pain during or after service. At the September 2020 Board hearing, the Veteran reported that he injured his left shoulder while playing football during service. He was unable to recall whether he sought treatment for such injury. He reported that at times he experienced sharp pain in the shoulder. He also stated that he probably went to sick call and received medication for his left shoulder. He denied experiencing left shoulder problems or seeking treatment for his left shoulder within a year of his separation from service. He testified that he has not sought treatment for his left shoulder problem. Upon consideration of the evidence above, the Board concludes that, while the Veteran has a current diagnosis of left shoulder degenerative joint disease, and evidence shows that he strained his left shoulder during service, the preponderance of the evidence weighs against finding that the Veteran’s diagnosis of left shoulder degenerative joint disease began during service or is otherwise related to an in-service injury, event, or disease. Significantly, the earliest evidence confirming a diagnosis of left shoulder degenerative joint disease was in July 2014, over 30 years after service. Such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd at 1333. Therefore, the absence of treatment or complaints for a left shoulder disorder for more than 30 years tends to suggest that the Veteran’s left shoulder degenerative joint disease did not manifest during, or as a result of, active military service. Additionally, there is no competent medical evidence in the record that links his left shoulder disorder to military service. In this regard, the only competent medical opinion of record addressing the etiology of his left shoulder disorder was provided by the May 2015 VA examiner. The Board affords significant probative value to the VA medical opinion as it was 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). Also, there is no medical opinion of record to contradict the VA examiner’s opinion and the Veteran has not submitted competent medical evidence relating his left shoulder disorder to service. With regard to whether arthritis was shown during service or within one year of separation, the Board finds that such a diagnosis was not shown. To determine that a chronic disease was “shown in service,” the disease identity must be established and the diagnosis not subject to legitimate question. 38 C.F.R. § 3.303 (b); Walker, 708 F.3d at 1331. The evidence does not show that the Veteran had arthritis or any other left shoulder disorder at the time he separated from service or within one year thereafter. Arthritis must be objectively confirmed by x-ray. 38 C.F.R. § 4.71, Diagnostic Code 5003. Thus, the Veteran is not entitled to service connection for arthritis of the left shoulder on a presumptive basis, either as a chronic disease during service or within one year of service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a); Walker, 708 F.3d 1335 -37. Therefore, chronicity is not established in service or within a year of separation. Furthermore, the evidence does not establish continuity of symptomatology since service. 38 C.F.R. § 3.303 (b). In this regard, the medical evidence does not document any complaints, treatment, or diagnosis of a left shoulder disorder for years after his military service. The Board acknowledges the Veteran’s lay statements that his current left shoulder disorder is related to an injury in service. Although lay persons are competent to provide opinions on some medical issues, Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, the diagnosis and etiology of a left shoulder disorder, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). The questions of diagnosis and etiology in this case go beyond a simple and immediately observable cause-and-effect relationship, particularly considering the delayed onset of the disorder. Based on the foregoing, the Board finds that a preponderance of the evidence is against the Veteran’s claim for service connection for a left shoulder disorder. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for a left shoulder disorder is not warranted. REASONS FOR REMAND 1. The claim of entitlement to a disability rating in excess of 10 percent for right elbow pronation is remanded. Please see discussion in paragraph 5. 2. The claim of entitlement to a disability rating in excess of 10 percent for left ankle sprain is remanded. Please see discussion in paragraph 5. 3. The claim of entitlement to a disability rating in excess of 10 percent for right elbow calcific tendinosis is remanded. Please see discussion in paragraph 5. 4. The claim of entitlement to a disability rating in excess of 10 percent for left knee osteoarthritis is remanded. Please see discussion in paragraph 5. 5. The claim of entitlement to a disability rating in excess of 10 percent for right knee patellar bone spur is remanded. The Veteran most recently underwent VA examinations to assess the severity of his service-connected right elbow and bilateral knee disorders in April 2015, and his service-connected left ankle disorder in March 2017. During the September 2020 Board hearing, the Veteran testified that his disorders worsened since the last VA examinations. A new VA examination is necessary when there is evidence that a service-connected disability has worsened since the last examination. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Green v. Derwinski, 1 Vet. App. 121 (1991). Based on the foregoing, the Board concludes that new VA examinations are needed to determine the current severity of the Veteran’s service-connected right elbow, left knee, and left ankle disorders. The matters are REMANDED for the following action: 1. The RO or the AMC should undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims, to include updated VA treatment records. If the RO or AMC deems the records do not exist or that any additional attempts to obtain these records would be futile, the record should be annotated to reflect such and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). 2. Then, the Veteran should be afforded a VA examination(s) by an examiner(s) with sufficient expertise to determine the current severity of his service-connected right elbow disorder, bilateral knee disorder, and left ankle disorder. The electronic records should be made available to and reviewed by the examiner. Any indicated studies should be performed. The examiner should record the results of range of motion testing for pain on both active and passive motion, as well as on weight-bearing and nonweight-bearing. If the examiner is unable to do so, he or she should explain why. In addition, the examiner must determine the extent of any additional limitation of joint motion (in degrees) due to weakened movement, excess fatigability, incoordination, or pain during flare-ups and/or with repeated use. In doing so, the examiner must consider and discuss all procurable and assembled data such as the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups, and then provide an assessment of the functional loss during flares, if possible in degrees of motion lost. (Continued on the next page)   If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Then, readjudicate the issues on appeal. If the benefits sought on appeal are not granted to the Veteran’s satisfaction, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. McKinley, 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.