Citation Nr: 21011557 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-36 715 DATE: March 2, 2021 ISSUE Entitlement to service connection for a right shoulder disability, to include tendonitis. (hereinafter, right shoulder disability.) ORDER Entitlement to service connection for a right shoulder disability is denied. FINDINGS OF FACT The Veteran's right shoulder disability was not manifested in service or within the one year following separation and is not related to his military service. CONCLUSION OF LAW The Veteran's right shoulder disability was not incurred in or aggravated by active military service and may not be presumed to have been incurred in service. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (West 2015); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from July 1981 to July 1992. In addition to other awards and decorations, the Veteran is in receipt of the Bronze Star Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) that denied entitlement to the benefits currently sought on appeal. This matter was adjudicated by the Board in April 2018 and July 2020. In the April 2018 decision, the Board, in pertinent part, remanded the Veteran’s service connection claim for a right shoulder disability for the purpose of obtaining a VA examination and medical opinion. In the July 2020 decision, the Board in pertinent part, remanded the Veteran’s service claim for a right shoulder disability for an additional VA medical opinion regarding the etiology of this Veteran’s right shoulder disability. The Board finds that there has been substantial compliance with its July 2020 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for a right shoulder disability The Veteran contends that his right arm disability began in service due to physical fitness training. The Veteran also reports that he played football during service. See May 2017 Board Hearing transcript, pgs. 5-6. 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) Service connection for certain chronic diseases may also be established based upon a legal "presumption" by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after service when all the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Continuity of symptomatology is an alternative method of establishing incurrence or aggravation and a nexus to service. 38 C.F.R. § 3.303(b). 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. The theory of continuity of symptomatology can be used only in cases involving those diseases explicitly recognized as chronic under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). 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, (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). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When the evidence for and against the claim is in relative equipoise, by law, the Board must resolve all reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2018). The analyses below focus on the most salient and relevant evidence and on what this evidence shows or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, with regard to the Veteran's claims. The Board now turns to the evidence of record in the evaluation of this Veteran’s claim. There is evidence of a current disability: A Magnetic Resonance Elastography report shows that the Veteran has post traumatic arthritis of the right shoulder. See October 11, 2010 MRE Report (National Medical Rehabilitation, P.C.). Furthermore, on x-ray, the Veteran’s shoulder revealed AC joint hypertrophy and/or degenerative changes bilaterally. Mild changes of the inferior aspect of the right glenohumeral joint. See May 20, 2019 Shoulder and Arm Conditions Examination, pg. 9. With regards to an in-service incurrence or aggravation of a disease or injury, an August 1988 treatment record reports the Veteran had complaints of left shoulder pain for 3 weeks. See August 23, 1988 Screening Note of Acute Medical Care. An April 1992 service treatment records report that the Veteran did receive treatment for left shoulder bursitis. See April 19, 1992 STR (Physical Therapy). On his June 1992 Separation examination, on clinical evaluation, the Veteran’s upper extremities were found to be normal. See June 3, 1992 Report of Medical Examination. The Veteran reported on his June 1992 Separation examination that he had complaints with respect to a shoulder condition. The Veteran’s Separation examination does not specify left or right shoulder. The Veteran also indicated on his June 1992 Separation examination that he did not know whether he had an arthritic condition, rheumatism or bursitis during service. See June 3, 1992 Report of Medical History. As referenced above, the Veteran claims that his current disability results from the physical fitness training during service. Notably, the Veteran does not point to any incident or injury during service with respect to his current right shoulder disability. The Veteran testified at his March 2017 Board hearing, however that he was treated for his shoulder condition with a heating pad during service. The Veteran also testified that he took some pills for this condition during service. See Board Hearing transcript, pg. 6. Based on the above evidence, the Board finds that the second prong of service connection for a right shoulder disability has arguably been met. See Shedden, 381 F.3d at 1167. With regards to a nexus to service, the Board finds that there is no causal relationship between the Veteran's current disability and any in-service incurrences. Post active duty service, a December 1997 treatment record reports that the Veteran has a past history of shoulder bursitis, 1985. The treatment record reports that there have been no recurrences. See December 17, 1997 treatment record. In the Veteran’s March 1998 Quad examination for US Army Reserve service, the Veteran did not report any complaints or treatment relating to a right shoulder condition. The Veteran checked no for painful “trick” shoulder or elbow. On clinical evaluation, the Veteran’s upper extremities were found to be normal. See March 21, 1998 Report of Medical History; See also, March 21, 1998 Report of Medical Examination. On the Veteran’s May 2003 Army Reserve retention examination, the Veteran's upper and lower extremities were normal on clinical evaluation. The Veteran did indicate bursitis in both shoulders. It was reported that the Veteran had bursitis for 11 years. No treatment was necessary. No limits to activity. See May 20, 2003 Report of Medical Examination; See also May 20, 2003, Report of Medical History. The Board notes that the Veteran submitted a lay statement from his former spouse who stated that the Veteran experienced excruciating pain in his shoulder after returning home from Desert Storm in 1992. She indicated that the pain in his shoulder would be so bad, he had to sleep sitting up. See May 19, 2017 Lay Statement. The Board now turns to the VA examinations of record in the evaluation of this Veteran’s claim: At the outset, the Board notes that the Veteran has been afforded a May 2019 VA Shoulder and Arms Conditions examination and Medical opinion, September 2019 Addendum medical opinion and an October 2020 Medical Opinion. Each examiner rendered a negative linkage opinion to service; See May 20, 2019 Shoulder and Arm Conditions Medical Opinion, pg. 39; See also, September 12, 2019 Addendum Medical Opinion. The May 2019 VA examiner opined that the Veteran’s claimed condition was less likely than not incurred or caused by the claimed in-service injury, event or illness. The examiner reasoned that there was no objective evidence of a bilateral shoulder condition on examination, only subjective complaints of pain. No shoulder complaints on 1998 exam long after separation, long interval without evaluation, imaging or treatment. In a follow-up September 2019 Addendum Opinion, the same examiner, after reviewing the Veteran’s diagnosis on x-ray, confirmed the same negative linkage opinion to service. See May 20, 2019 Shoulder and Arm Conditions Medical Opinion, pg. 39; See also, September 12, 2019 Addendum Medical Opinion. The Board found however that the September 2019 Addendum Medical Opinion was inadequate for adjudication purposes based on the examiner’s failure to consider the lay statement from the Veteran’s former spouse indicating that the Veteran was experiencing shoulder pain after returning home from Desert storm. See July 27, 2020 BVA Decision, pg. 12. Pursuant to the Board’s July 2020 Remand directives, the Veteran was afforded an October 2020 Addendum medical opinion regarding the etiology of his right shoulder condition. The examiner indicated review of all available records, including the Veteran’s lay evidence and the Veteran’s 1992 Separation Report of Medical History where he checked YES to pain for trick shoulder or elbow. The examiner opined that it was less likely than not that the Veteran’s shoulder condition was incurred in or caused by the claimed in-service injury, event or illness. The examiner provided the following rationale: On the Veteran’s “1992 separation report of medical history – Veteran checked YES to pain for trick shoulder or elbow. However, at the bottom of the report of medical history it is noted this refers to bursitis. Further review of service treatment records in the years prior indicated this diagnosis and treatment refers to his Left not his right shoulder. Report of Medical History dated March 21, 1998 the Veteran checked NO to pain for trick shoulder or elbow. 2019 Compensation and Pension Exam examiner did not find any right shoulder pathology. There is no evidence of any complaints, diagnosis, or treatment of any chronic Right shoulder condition while on active duty or within 1 year of separation. There is also no evidence of any chronic right shoulder condition in the 15+ years post separation. Lay evidence was considered when forming this opinion. Without the support of the medical record, by itself is insufficient to render a positive opinion.” See October 6, 2020 Medical Opinion, pgs. 1-2. In summary, the October 2020 VA examiner found that there was no evidence of an active right shoulder condition during active duty. The examiner reviewed the Veteran’s 1992 Separation examination thoroughly, noting that at the bottom of the Report of Medical History it is noted that this refers to bursitis. The examiner explained that further review of service treatment records in the years prior indicated this diagnosis and treatment refers to his Left not his right shoulder. The examiner explained that post separation from service, the Veteran did not report any complaints or treatment relating to a right shoulder condition on his March 1998 Quad examination. The Veteran checked NO for painful “trick” shoulder or elbow. (See March 21, 1998 Quad examination.) Additionally, the Board notes that the examiner considered the lay evidence of record when formulating the October 2020 opinion. The Board finds this October 2020 Addendum Medical Opinion highly probative and persuasive because it involved a review of all the available evidence of record, with specific consideration of the Veteran’s June 1992 separation examination, including the lay evidence of record in the course of formulating the opinion. Further, the examiner provided a well-reasoned explanation for the conclusion reached. A medical opinion is most probative if it is factually accurate, fully articulated, and based on sound reasoning. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The examiners considered the objective evidence, i.e. medical reports, and the subjective evidence, i.e. the Veteran's lay reports, and concluded that the Veteran's current right shoulder disability was not related to active service. The Board underscores that the examiner considered the favorable evidence of record, including the Veteran’s 1992 Separation examination (which indicated complaints of a trick shoulder) and reasoned that the evidence of record indicated diagnosis and treatment for a left shoulder during service. In other words, the examiner determined that the Veteran’s right shoulder disability was not noted in service. Further, there was no evidence of a continuity of symptoms regarding the Veteran’s right shoulder disability. In this case, the examiner determined that there was no evidence of any chronic right shoulder condition in the 15+ years post separation. The examiner considered the favorable lay evidence of record and reasoned that without the support of the medical record, by itself, is insufficient to render a positive opinion. See October 6, 2020 Medical Opinion, pg. 2. The Board has also considered the Veteran's statements regarding his right shoulder disability. A Veteran is competent to report symptoms which are observable through his five senses. See Layno v. Brown, 6 Vet. App. 465 (1994). The Veteran is competent to report his symptoms and when they began. He is not competent, however, to report the etiology of his right shoulder disability, which was diagnosed by complicated medical testing and a medical specialist. There is no evidence that the Veteran possesses the requisite medical knowledge to provide such an etiology opinion with respect to his right shoulder disability. The Board has considered the lay statement from the Veteran’s former spouse regarding the Veteran’s right shoulder disability. The Board finds, however, that the objective medical evidence of record is more probative than this lay statement as to the etiology of this Veteran’s right shoulder disability. See May 19, 2017 Lay Statement. Finally, the Board observes that service connection may be awarded on a presumptive basis for certain disabilities such as arthritis that become manifested within a proscribed period following active military service. 38 C.F.R. §§ 3.307, 3.309. In this case, however, the Veteran's arthritis was not initially manifested within a year following service. Rather, the first evidence of a diagnosis is around 2010, over 15 years after separation from service. (See October 11, 2010 Magnetic Resonance Elastography (MRE) report re: diagnosis of post traumatic arthritis of the right shoulder, National Medical Rehabilitation, P.C; See also October 11, 2010 Medical Report re: left shoulder bursitis, National Medical Rehabilitation, P.C.) Given that the Board has found the unfavorable October 2020 VA Addendum Medical Opinion to be the most probative and persuasive evidence of record, the preponderance of the evidence is against the Veteran's claims for service connection, and the claim must be denied. In this case, the Board finds that the Veteran's right shoulder disability was not manifested in service or within the one year following separation from his service and is not related to his military service. As the preponderance of the evidence is against the Veteran's claims, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107 (West 2015). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Little, 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.