Citation Nr: 21015133 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-13 622 DATE: March 16, 2021 ORDER Entitlement to service connection for a left shoulder disability is denied. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran had a chronic left shoulder disability during his service, or that he had arthritis in this shoulder within a year of his discharge from service, or that any current left shoulder disability is otherwise related or attributable to his service. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for a left shoulder disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1992 to October 2012. This appeal to the Board of Veterans' Appeals (Board) is from a September 2013 rating decision of a Department of Veterans’ Affairs (VA) Regional Office (RO). The Board twice remanded this claim back to Agency of Original Jurisdiction (AOJ), i.e., RO for further development and consideration – initially in September 2018 to obtain outstanding VA treatment records relevant to this claim and then to have the Veteran undergo a VA compensation examination to identify all current left shoulder disabilities, whether diagnosed or based on symptoms such as pain resulting in functional impairment of his earning capacity, and then for a medical opinion concerning the etiology of each left shoulder disability confirmed to exist, especially in terms of whether it began during his service or is otherwise related to his service. He declined to be examined, however, so the Board again remanded the claim in June 2019 so the AOJ (RO) could obtain this needed medical comment by having an appropriate clinician, instead, review the claims file and base the opinion on that review. Entitlement to service connection for a left shoulder disability The Veteran contends that his left shoulder pain is due to his service, specifically, owing to overuse of this shoulder from doing push-ups for training and carrying heavy loads, etc. He says he has had pain in this shoulder since initially injuring it in 1999 while in service. Service connection is granted for disability due to disease or injury incurred in or aggravated by active military service in the line of duty. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). “To establish a right to compensation for a present disability, a Veteran must show: ‘(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or an 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.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of a matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran began serving on active duty in the military in October 1992, and his service treatment records (STRs) show an instance of left shoulder tendinitis in February 1999 and tendinosis some 8 years later, from January through March 2007. However, he served for some 20 years in total, and there is no indication in his STRs that the tendinitis/tendinosis treated in service had continual symptoms that would result in chronic (permanent) disability. The final medical report from during his service is dated in January 2012, when an X-ray revealed a small bone spur, but without indication of any prior trauma. His symptoms had improved by the end of that month. His service ended in October 2012. Left shoulder tendinosis was not again diagnosed until April 2015, so not until nearly 3 years later. The record contains two VA medical opinions addressing whether there is a correlation between that diagnosis, post service, and the diagnoses the Veteran earlier received during his service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) (“A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.”). The initial March 2015 opinion did not address all relevant VA treatment records and, consequently, was considered inadequate by the Board and, therefore, partly the reason that the Board initially remanded this claim in September 2018. But also keep in mind that the Board again remanded this claim in June 2019 because the Veteran had refused to be examined. And, following that additional remand of this claim, the AOJ (RO) was able to have a clinician instead do a file review, including considering the additional VA treatment records mentioned that had not been considered in the initial opinion, and this VA examiner provided comment in December 2019.   This December 2019 examiner determined that the tendonitis the Veteran had in February 1999 and the tendinosis he had in early-to-mid-2007 were acute, resolved conditions, according to his STRs and his personal statements to his treating providers. This commenting examiner noted that no diagnosis was provided for the Veteran’s January 2012 symptoms, and that they also resolved. This examiner then goes on to observe that, after service, the Veteran reported left shoulder pain in May 2014, August 2014, March 2015, and September 2017. But the only affirmative diagnosis was from his March 2015 visit, which found tendinosis. His May 2014 and March 2015 X-rays were unremarkable. So, concluded this examiner, the injuries in service were resolved, and there was no medical evidence directly linking the Veteran’s post-service complaints to those injuries in service. Thus, this examiner concluded that any post-service complaints were less likely than not related to in-service events. In making this assessment, the examiner had full access to the claims file and to all relevant treatment and other records – including, as mentioned, the VA treatment records not considered in the initial opinion. Moreover, the examiner discussed the Veteran’s lay statements (personal assertions), including in relation to his relevant treatment history and symptomology, and more importantly provided the required reasoning or rationale for the opinion – which, ultimately, is where most of the probative value of an opinion is derived. See, e.g., Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); Prejean v. West, 13 Vet. App. 444, 448-9 (2000); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As importantly, there is no contrary medical opinion tending to refute this unfavorable medical opinion. And, since a layman, and because the condition at issue is complex not just simple, the Veteran cannot himself refute this medical examiner’s unfavorable opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); Kahana v. Shinseki, 24. Vet. App. 428 (2011). Thus, this unfavorable medical opinion is more probative – and therefore more persuasive, than his unsubstantiated lay assertions. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). See also 38 C.F.R. § 3.159(a)(1) and (a)(2). For the reasons and bases discussed, the preponderance of the evidence is against this claim of entitlement to service connection for a left shoulder disability, so the benefit-of-the-doubt rule does not apply, and this claim resultantly must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Stearns, 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.