Citation Nr: 21014165 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 14-16 884 DATE: March 11, 2021 ORDER Entitlement to service connection for a right shoulder condition is denied. Entitlement to service connection for an acquired psychiatric condition is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a right shoulder condition, to include a rotator cuff tear, glenohumeral joint osteoarthritis, and acromioclavicular joint osteoarthritis, began during active service, or is otherwise related to an in-service injury or disease. 2. The preponderance of the evidence is against finding that an acquired psychiatric condition, to include unspecified depressive disorder, began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right shoulder condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for an acquired psychiatric condition have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the U.S. Army from December 1965 to November 1967. The Veteran testified at a hearing before the undersigned Veterans Law Judge in February 2018. A transcript of that hearing is in the record. The Board remanded the above issues in June 2018 and July 2019. In July 2019, the Board remanded the above issues for additional VA opinions, which were obtained in December 2020. The Board finds the obtained opinions adequate and is thus satisfied there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. To establish entitlement to service-connected compensation benefits, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For veterans with 90 days or more of active service during a war period or after December 31, 1946, certain chronic diseases 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. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), where a chronic disease is shown as such in service, subsequent manifestations of the same chronic disease are generally service connected. If a chronic disease is noted in service but chronicity in service is not adequately supported, a showing of continuity of symptomatology after separation is required. Entitlement to service connection based on chronicity or continuity of symptomatology pursuant to 38 C.F.R. § 3.303(b) applies only when the disability for which the Veteran is claiming compensation is due to a disease enumerated on the list of chronic diseases in 38 U.S.C. § 1101(3) or 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 1. Entitlement to service connection for a right shoulder condition is denied. The Veteran contends that he has a right shoulder condition that is related to service. First, according to the January 2020 VA examination, the Veteran has the following right shoulder diagnoses: rotator cuff tear; glenohumeral joint osteoarthritis; and acromioclavicular joint osteoarthritis. Therefore, the first element of service connection, a diagnosis, has been met. Second, as noted in the June 2018 Board remand, the Veteran’s service treatment records (STRs) are silent for treatment, complaints, or a diagnosis pertaining to his service connection claim for a right shoulder condition; however, in the Veteran’s February 2018 hearing, the Veteran testified that the right shoulder condition began and/or was caused by service. Specifically, the Veteran testified that his job in service consisted of maintenance and care of tanks and other vehicles, which involved heavy lifting of parts. The Veteran also testified that the pain in his right shoulder was caused by having to fire the M60 machine gun. Given the Veteran’s competent and credible statements, the second element of service connection, and in-service incurrence, has been met. Therefore, the only remaining issue is whether a nexus may be established. In December 2020, the VA examiner concluded that the Veteran’s right shoulder 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 reasoned that the Veteran’s service treatment records (STRs) are silent for a right shoulder condition, including any shoulder or arm trauma and/or treatment, during service or one year after separation. The examiner also noted that, as there is no evidence that a right shoulder condition was manifested within one year of active duty service. Accordingly, the examiner concluded that there is no evidence of continuity for this condition. The examiner noted that the Veteran was diagnosed with a right shoulder condition in 2013, around 53 year after his last active service period. The examiner also noted that the first complaints of a right shoulder was not until June 2004 during a clinical exam suggestive of radiculopathy, around 37 year after his last active service period. The examiner concluded that, after considering any lay statements, a base medical examination, and record review, there is not objective evidence to correlate his actual right shoulder condition was related to firing the M60 machine gun as part of his military occupational specialty as an armor intel specialist. Therefore, the examiner concluded that his right shoulder condition is less likely as not related to active service and is more likely related to the natural aging process. The Board finds the December 2020 VA opinion probative, because it is based on an accurate medical history, discusses the Veteran’s lay statements, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his right shoulder condition 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. While the Veteran is competent to report observable symptoms such as pain, the cause of the pain is not something that can be determined based on mere observation. The issue is medically complex. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he 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 December 2020 VA opinion. Lacking a nexus, entitlement to service connection for a right shoulder condition is denied. 2. Entitlement to service connection for an acquired psychiatric condition is denied. First, the January 2020 VA examiner noted that the Veteran has a diagnosis of unspecified depressive disorder. Therefore, the first element of service connection, a diagnosis, has been met. Second, as noted in the June 2018 Board remand, he Veteran’s service treatment records (STRs) are silent for treatment, complaints, or a diagnosis pertaining to his service connection claims; however, in the Veteran’s February 2018 hearing, the Veteran testified that the Veteran’s psychiatric condition began and/or was caused by service. Specifically, the Veteran testified that he has feelings of nervousness and panic that began to show in service and have continued since service. Given the Veteran’s competent and credible lay statements regarding symptoms he experienced in service, the second element of service connection, an in-service incurrence, has been met. Therefore, the only remaining issue is whether a nexus may be established. In December 2020, the VA examiner opined that the Veteran’s psychiatric 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 reasoned that the Veteran was in military service from 1965 to 1967 with no referrals nor personal requests for behavioral health services. Indeed, the examiner noted that the Veteran did not seek a mental health evaluation, diagnosis, and treatment until 2003, 36 years post military service. The examiner noted that the Veteran sought mental health treatment in 2003 due to alcohol abuse and economic problems, not due to his military service. The examiner noted that, while the Veteran reported feelings of nervousness and panic that began to show in service that have continued since service, his pre-induction and separation medical history are silent for any mental complaints, diagnosis, or treatment of a mental health condition. The examiner also noted that, in 2003, the first mental health complaint noted, a VA social worker reported that this mental health complaint was due to an alcohol and economic problem. The examiner then concluded that the Veteran’s unspecified depressive disorder was less likely than not incurred in or caused by the claimed in-service injury, event, nor illness. The Board finds the December 2020 VA opinion probative, because it is based on an accurate medical history, discusses the Veteran’s lay statements, and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his unspecified depressive disorder 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. While the Veteran can report observable symptoms such as nervousness and panic, the cause of these symptoms cannot be determined based on mere observation. The issue is medically complex. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he 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 December 2020 VA opinion. Lacking a nexus, entitlement to service connection for an acquired psychiatric condition is denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. E. Grossman, 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.