Citation Nr: 21014420 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 16-46 018A DATE: March 12, 2021 ORDER Entitlement to service connection for a right shoulder disability to include degenerative arthritis is denied. FINDING OF FACT The competent and probative evidence does not establish that the current right shoulder disability was incurred in or is otherwise etiologically related to service; the disability also did not onset within one year of separation. CONCLUSION OF LAW The criteria for service connection for a right shoulder disability, to include degenerative arthritis have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from July 2002 to May 2003, with additional active duty for training in the Army and Navy Reserves. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was most recently before the Board in August 2020, at which time the issue currently before the Board was remanded for additional development. The case was previously remanded in December 2018. The case has now been returned to the Board for appellate review. A review of the record shows that the Veteran failed to report for two consecutive VA examinations. The Board finds that the VA complied with the Veteran’s request to be rescheduled to a facility closest to his home and complied with the August 2020 remand directives. Therefore, the Board concludes that the VA’s duty to assist has been satisfied. Specifically, VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran’s claim. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (2018); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2019). Service Connection- Right Shoulder The Veteran contends that his right shoulder disability began in service in 2003 and continued after service. For the reasons that follow the Board finds that service connection is not warranted. Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). VA has established certain rules and presumptions for chronic diseases, such as arthritis. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). With chronic diseases shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless attributable to intercurrent causes. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. § 3.303(b). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, 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 C.F.R. §§ 3.307(a)(3), 3.309(a). The Veteran has a current right shoulder disability, such that the first element of direct service connection is met. Next, the Veteran’s service treatment records (STRs) are silent for complaints, treatment, or diagnoses of a right shoulder disability during active duty. As the Veteran reported other ailments during service, and shoulder problems are the type that a reasonable person would report, if the Veteran was experiencing problems with his right shoulder during service the Board would expect that he would have reported these problems to medical professionals. The Veteran’s medical examination reports whether in active service or the reserves reflected normal upper extremities along with negative responses for painful/trick shoulder and painful joints. Moreover, the Veteran responded affirmatively when asked whether he had other conditions upon examination, and the Board would thus expect the Veteran to have also responded affirmatively to having shoulder pain. Post-service medical evidence of record shows that the Veteran receives treatment for his right shoulder disability in private medical facilities. The Veteran was in a motor vehicle accident in November 2005 and developed shoulder pain where the seat belt had hit him. The pain improved dramatically with physical therapy. He was diagnosed with right shoulder pain. The examiner noted that it sounds like either a contusion or a rotator cuff injury. In May 2007, the Veteran reported an auto accident where he was a passenger and received a right shoulder injury. He described constant pain with decreased range of motion and difficulty with assisted daily living activities. The Veteran reported significant burning in the right shoulder blade region which he attributed to the shoulder injury. The May 2007 MRI revealed that there was a marked degeneration of the glenohumeral joint, mild degeneration of the AC joint, minimal degeneration cyst of the superior humeral head, and degeneration of the labrum. The rotator cuff shows no acute tears, complete tears, or acute tendonitis. During his visit to the VA Medical Center in October 2017, the Veteran reported that he fell and hurt his right shoulder. X-rays were taken and the Veteran was told he needed a shoulder replacement, but he was not a good candidate. At a December 2019 VA psychology evaluation, the Veteran reported injuring his shoulder while woodworking. Upon VA examination in January 2014 for the purposes of his service connection claim, the Veteran was diagnosed with degenerative joint disease in the right shoulder AC and GH joints including clavicular bony fragmentation. The Veteran reported that the right shoulder disability had a gradual onset in 2003. The Veteran experienced flare-ups. The examiner opined that there was no basis for the right shoulder disability to be related to the service-connected lumbar spine on a secondary basis. See 38 C.F.R. § 3.310. The direct service connection issue regarding the right shoulder was never addressed in the opinion, however. As the Board noted above, it has twice remanded his claim to afford him a new VA examination, but he has failed to report. VA’s duty to assist is a two-way street, and the Veteran cannot wait passively in those situations where his assistance to VA is necessary. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Based on the foregoing, the most probative evidence weighs against the claim. Although the Veteran has current right shoulder disability coupled with the Veteran’s lay contentions that his right shoulder disability had its onset in service, there is no competent medical evidence of record that establishes a nexus between the two. Further, the Veteran’s documented shoulder injuries happened after service and were caused by falls, car accidents, and woodworking and not due to active service. Specifically, there is no credible evidence of a chronic condition in service, no credible evidence of a chronic condition at discharge nor is there any credible evidence linking his current disability with service or service-connected disabilities. The Board notes that the Veteran is generally competent to report when he first experienced symptoms of a right shoulder disability. However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. Competency is a legal concept determining whether testimony may be heard and considered, and credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Layno v. Brown, 6 Vet. App. 465 (1994). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 133 (Fed. Cir. 2006). The Board may not ignore a Veteran’s testimony simply because he is an interested party and stands to gain monetary benefits. However, personal interest may affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). In this case, the Board finds that the Veteran’s statements that he experienced right shoulder problems in service are not credible. In this regard, the Veteran’s statements are inconsistent with the other evidence of record. The Veteran’s STRs are silent for complaints of, or treatment for or diagnosis of right shoulder problems. Further, the Veteran’s medical examinations in service did reflect his upper extremities and joints as clinically normal. The Veteran’s documented shoulder injuries happened after service and were caused by falls, car accidents, and woodworking and not due to active service. Further, there are no probative medical opinions of record that indicate that his right shoulder disability is due to his active service. As the Veteran’s reports of his right shoulder disability in service are inconsistent with the other evidence of record, they are not credible. While the laypersons are competent to report observable symptoms, the Veteran is not competent to provide a medical opinion linking his current right shoulder disability to an in-service injury as that would require medical knowledge, training, and expertise and is simply outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran is not competent to provide an etiology opinion in this case. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to service connection for a right shoulder disability is not warranted. 38 U.S.C. § 5107 (b) (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Robert N. Scarduzio Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Ivan Franklin 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.