Citation Nr: 21015718 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 14-35 425 DATE: March 18, 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 a left shoulder disability began during active service, or is otherwise related to an in-service event, injury, or disease. CONCLUSION OF LAW The criteria for entitlement to service connection for a left shoulder disability have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3,307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran enlisted in the South Carolina Army National Guard in October 1977. He served on initial active duty for training from December 1977 to March 1978, at which time he returned to his National Guard unit until June 1, 1991. In June 2018, the Veteran testified before the undersigned Veterans Law Judge at a Video Conference hearing. A copy of the transcript has been associated with the claims file. The Veteran’s claims were previously before the Board in September 2018 and September 2020. In September 2018, the Board determined the Veteran’s claim required additional development, including a VA examination for the Veteran’s disability. In September 2020, the Board determined that there were outstanding medical records which needed to be associated with the record. In the subsequent months following the Board remand, the RO attempted to obtain the Veteran’s records regarding his shoulder condition, but the Veteran failed to cooperate. The Board notes that the duty to assist is not a one-way street; the Veteran has a duty to cooperate with VA and facilitate needed development. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). By attempting to assist the Veteran, the AOJ substantially complied with the remand directive, and a further remand is not required in this regard. See D’Aries v. Peake, 22 Vet. App. 97, 106 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). As the remaining requested development has been completed, no further action to ensure compliance with the remand directives is required. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). In order to establish service connection, the record must show competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d, 1362, 1366 (Fed. Cir. 2009). When considering such a claim for service connection, the Board must consider on a case-by-case basis, the competence and sufficiency of lay evidence offered to support a finding of service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 Fed. Cir. 2007)). The mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). For continuity of symptomatology, the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. See Cartright v. Derwinski, 2 Vet. App. 24, 26 (1991). The Board may, however, consider a lack of contemporaneous medical evidence as one factor, among others, in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 1. Entitlement to service connection for a left shoulder disability The Veteran contends that his left shoulder disability was caused by service. At his June 2018 hearing, the Veteran testified that his left shoulder disability was caused by wearing a heavy backpack while in service. See Hearing Transcript at 19. At the outset, the Board finds that the Veteran has a current disability. See e.g., June 2019 VA Examination. In addition, the Board finds that the Veteran’s lay statements regarding an in-service shoulder injury after carrying a backpack are credible, and as such satisfy the in-service element for his service connection claim. The remaining question for the Board is whether the Veteran’s shoulder disability is related to his active duty service. The Veteran underwent a VA examination for his shoulder disability in June 2019. The examiner diagnosed the Veteran with glenohumeral joint osteoarthritis of the left shoulder and acromioclavicular joint osteoarthritis of the left shoulder. The Veteran reported gradual worsening of his left shoulder pain since approximately 1990. He reported recurrent pain at the dorsal aspect of his left shoulder with repetitive overhead activities and sleeping on his left side. In addition, he reported that he had received steroid injections in the shoulder with improvement of his symptoms. The examiner determined that it was less likely than not that the Veteran’s current left shoulder condition was related to his time in service. The examiner reasoned that there was no evidence of a left shoulder injury, complaints, evaluation, or treatment during the Veteran’s time in service or within one year of discharge from service. The examiner noted that the Veteran’s left shoulder condition was more likely than not related to his various construction jobs after his discharge from service. The Board assigns the July 2019 VA opinion high probative weight, as the examiner performed a review of the Veteran’s medical records, lay statements, and provided an adequate rationale for the opinion that the Veteran’s left shoulder condition did not result from active military service. The Board has considered the Veteran’s statements linking his current left shoulder condition to his service. While it is in error to categorically reject layperson nexus evidence as incompetent, the Board is allowed to consider the facts of a particular case to determine the layperson’s competence. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009). In this regard, the Board notes the Veteran is competent to report symptoms experienced in service and since such time. However, the Veteran is not competent to attribute his current condition to any instance of military service. He has not demonstrated that he is an expert in determining the etiology of a shoulder disability and is a layperson in this regard. The Board has also considered presumptive service connection under 38 C.F.R. § 3.309(a) for the Veteran’s left shoulder disability, including based on a continuity of symptomatology under 38 C.F.R. § 3.303(b). While the Veteran has contended that he has a left shoulder disability caused by service, he has not claimed he has received medical care since service. Further, there are also no records indicating that the Veteran’s left shoulder disability manifested within a year of separation of service or that it occurred continuously since discharge from service. To the extent that the Veteran contends that he has experienced a left shoulder disability continuously since discharge, the Board does not find these statements to be credible, as they are inconsistent with the medical and other lay evidence of record. As such, the evidence does not support granting service connection for the Veteran’s left shoulder disability on a presumptive basis or based on continuity of symptomatology. In conclusion, service connection for a left shoulder condition is not warranted. The preponderance of the evidence is against the claim of entitlement to service connection for a left shoulder disability and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, 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.