Citation Nr: 21011977 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 14-15 592A DATE: March 3, 2021 ORDER Entitlement to service connection for a left shoulder disability (described as chondromalacia and as glenohumeral joint instability) is denied. FINDING OF FACT There is no competent evidence linking the Veteran’s current left shoulder disability to active service, including in-service injury; left shoulder disability was not shown during active service and did not manifest to a compensable degree within one year of active service and the evidence does not credibly show continuity of symptomatology since active service. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for a left shoulder disability has not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active service with the United States Air Force from January 1965 to October 1968. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veteran Law Judge (VLJ) in June 2017. A transcript of the hearing is associated with the claims file. The Board remanded the claim for further development in December 2017 and again in March 2020. The Veteran was afforded another VA examination in March 2020. After a Supplemental Statement of the Case (SSOC) in August 2020, this claim was returned to the Board. As to the remand, the Board finds that the new VA examination reflects substantial compliance with the March 2020 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). No other duty to notify or duty to assist issues have been raised. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board will adjudicate the claim currently on appeal. Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). A grant for service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the present disability and the in-service event, injury, or disease. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including the evidence pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Additionally, service connection may be granted for specified chronic diseases when shown in service with subsequent manifestations at a later date, however remote, unless clearly attributable to intercurrent causes. 38 C.F.R. §§ 3.303(b), 3.307. Some chronic diseases are subject to presumptive service connection, although, not otherwise established as incurred or aggravated by service if manifest to a compensable degree, within an applicable time limit, provided that the rebuttable presumptive provisions of § 3.307 are also satisfied. See also 38 C.F.R. §§ 3.303, 3.309. Alternatively, to show a chronic disease in service, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Arthritis is considered a chronic disease under 38 C.F.R. § 3.309(a). For chronic diseases to be presumed service-connected, under this provision, the condition must manifest to a degree of 10 percent within one year from date of termination of such service. See 38 C.F.R. § 3.307(a)(3). 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 Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this case, the Board has reviewed all the evidence of record, 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) (holding that VA must review the entire record but does not have to discuss each piece of evidence). 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, as to the claim on appeal. The Veteran contends that he injured his left shoulder in service and that his shoulder has hurt since service. See Hearing Transcript received June 2017. The Veteran reported that he strained or injured his shoulder while weight training in service. He felt and heard an audible tear. He went to see a medic, but he was told if the incident was reported he would have to go to Japan for surgery. The Veteran stated he elected to live with the injury. He reported frequent dislocations of the shoulder with normal activities and that he learned to not use the shoulder as often. See NOD received March 2014. First, the Board has considered whether service connection is warranted on a presumptive basis. In particular, the Board considered whether any evidence supported that the Veteran’s left shoulder disability began in service. However, a review of the evidence shows that the Veteran had a normal examination of the upper extremity at separation. See STR- Medical received September 2014. The Board does note that, in January 1966, the Veteran had an examination showing probable muscle spasms and dull pain at the border of the left scapula. See STR- Medical received September 2014. Then in January 1967, the Veteran reported back pain with pain at the medial border to the left scapula. Id. However, at discharge in July 1968, the Veteran reported good health. No injuries to the shoulder were reported. Id. The Report of Medical Examination performed at separation reported no upper extremity abnormalities. Id. The Board recognizes that the Veteran might sincerely believe that his shoulder disability began in service. In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on his symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge); see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Although the Veteran is competent to report his symptoms of shoulder pain in service, he does not possess the medical expertise required to provide a competent opinion concerning the etiology of the disability at issue. So, the Board finds that shoulder disability is not shown in service by any competent evidence of record. Next, the Board has considered if any evidence shows that the Veteran’s left shoulder disability manifested with arthritis to a degree of 10 percent within one year from date of his service. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). However, the Veteran does not appear to have arthritis. See C&P Exam received March 2012 and March 2020. The Veteran does have a shoulder disability, but the evidence does not show that it manifested until well after service. The evidence also does not show a continuity of symptoms since service. Last, the Board has considered direct service-connection, but the evidence does not show a causal relationship (“nexus”) between the Veteran’s present left shoulder disability and an in-service event, injury, or disease. For direct service connection, first you must have a present disability. The Veteran’s VA treatment records reflect a present diagnosis of chondromalacia and glenohumeral joint instability. The Veteran also reported that he had difficulty with left shoulder dislocations and pain. For example, the Veteran had a shoulder imaging in December 2011, which found that he had no bony destruction lesions seen. See C&P Exam received March 2012. The Veteran has been diagnosed with Chondromalacia of the left shoulder. Id. Then in March 2020, he was diagnosed with glenohumeral joint instability. See C&P Exam received March 2020. Therefore, considering all the evidence, the Veteran does have a present disability. For direct service connection, you must also have an in-service event, injury, or disease. The Veteran reported that he injured his shoulder in service, while lifting weights. He reported that he did not go to the hospital to have any treatment or operations on his shoulder. See C&P Exam received March 2020. The Veteran supplied lay statements about his shoulder injury during service, which were considered. Additionally, buddy statements were provided by the Veteran and also considered. For example, his wife reported that since service in Thailand the Veteran’s shoulder would pop out of joint. See Buddy/Lay Statement received June 2017. See also Buddy/Lay Statement received March 2014 and February 2013. Even if the Veteran had an injury to his left shoulder in service, for direct service connection, a causal relationship (“nexus”) between the Veteran’s present disability and the in-service event is required, and a nexus has not been well supported. The Veteran has been afforded VA examinations to consider whether there is a relationship between his reports of an injury during service and his current left shoulder disability. However, there is no medical opinion supporting any causal relationship or nexus. In March 2018, the Veteran had an in-person examination. The examiner opined that the condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained that while the Veteran may have injured his shoulder in service, the examiner felt that the long-term residual effects of the injury were questionable in light of the Veteran’s normal separation examination. The examiner stated that his current examination might indicate bursitis of the shoulder, but the Veteran had full range of motion and function. The examiner explained that bursitis of the shoulder is very common and can develop from engaging in activities. The examiner also noted that the Veteran reported that he built a rock wall at his home and lifted many rocks and “tossed them” which could cause a shoulder strain. See C&P Exam received March 2018. In March 2020, the Veteran had an in-person VA examination. The VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, events, or illness. As to the Veteran, the examiner noted that there was a large time gap and a lack of specific etiology. The examiner noted that shoulder complaints were not documented in the separation examination and that the Veteran had negative x-ray imaging. The examiner explained that even if the Veteran had an MRI or surgical management, that would only show the current shoulder condition and not provide any direct link to the injury in 1967. See C&P Exam received March 2020. While the Veteran believes that his current left shoulder disability is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis and etiology of left shoulder disability are matters not capable of lay observation and require medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of his left shoulder disability is not competent medical evidence. Thus, the Board finds the opinion of the VA examiners to be significantly more probative than the Veteran’s lay assertions. The March 2020 VA examiner’s conclusion, that the Veteran’s left shoulder disability was less likely than not related to his active duty service, including his reported injury to his left shoulder, is supported by a reasonable rationale. Given the extensive time between active duty service and the diagnosis of left shoulder chondromalacia and glenohumeral joint instability, as well as considering all of the evidence of record, the Board finds that the preponderance of the evidence of record weighs against service-connection for a left shoulder disability. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The claim of entitlement to service connection for left shoulder disability must be denied. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, C. Parnell 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.