Citation Nr: 21015602 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 15-12 715 DATE: March 18, 2021 ORDER Entitlement to service connection for a right shoulder injury is denied. FINDING OF FACT A right shoulder disability did not manifest during service or within one year of service and is not otherwise etiologically related to service. CONCLUSION OF LAW The criteria for entitlement to service connection for right shoulder disability have not been met. 38 U.S.C. §§ 1101, 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1981 to March 1984. This matter is before the Board of Veterans’ Appeals (Board) from a February 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the Board in a hearing in October 2018. A transcript of that hearing is of record. In May 2019, the Board remanded this issue to obtain a supplemental statement of the case since new evidence had been associated to the record after the last adjudication and there was no waiver of initial adjudication by the RO. The requested SSOC was issued in July 2020. Although following the SSOC additional VA treatment record for dates in 2020 and 2021 were thereafter added to the record, those records were cumulative of those already considered by VA, and were not additional and pertinent. The Board therefore finds that VA substantially complied with the remand instructions and the issue is properly before the Board. 1. Entitlement to service connection for a right shoulder injury Service connection may be granted for disabilities resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C. §§ 1110, 1153; 38 C.F.R. § 3.303, 3.304, 3.306. In order for a disorder to be service connected, there must be: (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain chronic diseases, such as arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Under 38 C.F.R. § 3.303 (b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a). Arthritis is a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). As a result, service connection via the demonstration of continuity of symptomatology is applicable to the issue of arthritis in the present case. The Veteran asserts that he is entitled to service connection for a right shoulder disability because he injured it during service. He has reported that he injured his shoulder while playing volleyball and also from lifting and carrying heavy objects during service. The Veteran nor his representative have asserted any other theory of entitlement other than the above. Service treatment records are silent for any right shoulder injury, pain, treatment, or diagnosis. There is indication that the Veteran had problems with his left arm, but there is no indication that he suffered from any right arm or right shoulder problems. Moreover, in a January 1984 examination, there was no indication of any right shoulder problems and the Veteran did not report any shoulder problems. Post-service treatment records reflect a diagnosis of a right shoulder disability, but they do not contain etiologic opinions other than repeating what the Veteran reported. The Board notes that a diagnosis was not made within a year of service discharge. Moreover, while the Veteran and his representative reported during the October 2018 Board hearing that the Veteran was seen for shoulder pain multiple times and was told that he had a shoulder strain, upon review of the records there is no indication that the Veteran had any treatment or diagnosis of any shoulder pain in service. The Veteran also reported during the Board hearing that because the medical clinic was two hours away, he was unable to visit the clinic as often as he needed for his disability. Additionally, during the Board hearing the Veteran reported that two doctors have stated that the heavy lifting and the shoulder strains in service could have caused or aggravated the shoulder to the point of getting the shoulder tear post-service. There is no medical evidence where these doctors have opined this. In all post-service medical treatment records, the examiners have relayed the information that the Veteran himself reported and the examiners themselves did not provide any etiological opinion regarding the onset of the Veteran’s right shoulder disability. The Board finds the Veteran’s account of what the above physicians purportedly said to lack credibility. The Board also finds the Veteran’s assertion that records of his right shoulder problems in service are lacking because of the inconvenience of the clinic location. Even assuming he were stationed in an are where the military had no medical facilities close by, which is unlikely, the service treatment records document other maladies including left arm problems, and the Veteran did not report any right shoulder problems at discharge. The Board finds his account to lack credibility, and finds he had ample opportunities to report any right shoulder problems. The Veteran was not afforded a VA examination and no VA opinions were obtained regarding this disability, and the Board concludes that such is not necessary. While there is competent evidence of a current disability per post-service treatment records, there is no credible indication of any in-service event for the right shoulder disability. As the evidence does not establish that an event, injury, or disease occurred in service, the Board finds that pursuant to McLendon, VA examinations and/or VA opinions in this case are not warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board acknowledges that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss pain and other symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In the present case, however, the Board finds that the Veteran’s lay statements, are outweighed by the service treatment records and post-service treatment records. Further, the Veteran is not competent to diagnose any medical disorder or render an opinion as to the cause or etiology of his right shoulder disability because he does not have the requisite medical knowledge or training. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997) (stating that competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence). Accordingly, though the Veteran is competent to report his symptoms, he is not competent to provide an opinion as to nature and etiology. Additionally, the Board does not find the Veteran’s statements to be credible since he has repeatedly mentioned how he sought treatment in service, but there is no indication of any sort of treatment. The Veteran himself reported that he did not have any shoulder disability during the January 1984 examination. The Board finds that the probative value of the medical records outweighs the Veteran’s recollections regarding his right shoulder disability. The earliest competent and credible evidence indicating the presence of a right shoulder disability was in April 2004. Thus, the earliest evidence indicating a diagnosis of a right shoulder disability was many years after the Veteran’s separation from service. The Board notes that, although not a dispositive factor, the passage of time between the Veteran’s discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran’s claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). In summary, STRs are completely negative for any diagnosis or continued treatment for a right shoulder disability, and there is no probative persuasive lay statements or medical opinions linking his current right shoulder disability to service. Further, the Board notes that the right shoulder disability was not diagnosed or manifested to a compensable degree within one year of service discharge. For these reasons, the Board finds that a preponderance of the evidence is against the claim for service connection for a right shoulder disability, and the claim is denied. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Imam, 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.