Citation Nr: 21024281 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 16-08 685 DATE: April 22, 2021 ORDER Entitlement to service connection for a right shoulder condition (claimed as right arm surgery and shoulder dislocation) is denied. FINDING OF FACT The most competent and credible evidence of record illustrates that there is clear and unmistakable evidence that the Veteran had a pre-existing right shoulder condition that was not aggravated by his military service. CONCLUSION OF LAW The criteria for entitlement to service connection for a right shoulder condition (claimed as right arm surgery and shoulder dislocation) have not been met. 38 U.S.C. §§ 1110, 1116, 1154 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1965 to January 1966. The Regional Office (RO) held a formal conference in November 2016 and the conference report is of record. The Veteran declined an optional Board hearing in his February 2016 VA Form 9. The Board finds there has been substantial compliance with the prior Board remand instructions as the requested records and an adequate VA medical addendum opinion have been obtained. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. In deciding a claim, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. See Gilbert, 1 Vet. App. at 53. In making this determination, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board has thoroughly reviewed all the evidence in the Veteran’s VA files. In every decision, the Board must provide a statement of the reasons or bases for its determination adequate to enable the Veteran to understand the precise basis for the Board’s decision, as well as to facilitate review by the United States Court of Appeals for Veterans Claims (Court). 38 U.S.C. § 7104 (d)(1) (2012); see Allday v. Brown, 7 Vet. App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). In addition, service connection may be warranted for disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310. The Veteran seeks service connection for a right shoulder condition. He stated in the VA Form 9 that this condition was aggravated in service due to training/shoulder dislocation for which he underwent shoulder reconstruction surgery in 1970 at the Fondo del Seguro del Estadio, but he also made a seemingly conflicting statement in the March 2017 VA 21-4138 form that he did not have a right shoulder disability prior to service. The Veteran’s VSO also subsequently submitted Appellate Briefs, only stating that despite the Veteran’s pre-existing injury, he was admitted into service and was found physically fit, that he was able to perform push-ups, pull-ups, and other physical activities, but the motions specific to grenade discharge caused his shoulder dislocation and aggravated his condition beyond its normal progression. A veteran is presumed to have been sound upon entry into service when no preexisting condition is noted at entry. See 38 U.S.C. § 1111; Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). In this case, the Veteran was not noted to have any pre-existing right shoulder on entry, so he is entitled to the presumption of soundness. Because the presumption of soundness attaches with respect to this disability, the burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the disorder both pre-existed service and was not aggravated in service. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If this burden is met, then the veteran is not entitled to service-connected benefits. See id. However, if the government fails to rebut the presumption of soundness under § 1111, then the veteran’s claim is one for service connection. See id. Clear and unmistakable evidence is defined as obvious or manifest. 38 C.F.R. § 3.306 (b). Clear and unmistakable evidence means that the evidence “cannot be misinterpreted and misunderstood, i.e., it is undebatable.” Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). A lay person’s account of what a physician may or may not have diagnosed is insufficient to support a conclusion that a disability preexisted service. See Paulson v. Brown, 7 Vet. App. 466, 470 (1995). Rather, supporting medical evidence is needed to establish the presence of a preexisting condition. See Crowe v. Brown, 7 Vet. App. 238 (1994). Here, despite the Veteran’s seemingly conflicting statements made in support of his claim, there is clear and unmistakable evidence that the Veteran’s right shoulder condition preexisted service. His January 1966 Medical Board Proceedings form contains a summary of recurrent dislocation of old joint/right shoulder, as well as recommendation for separation for condition existing prior to service. Although there is a December 30, 1965 record indicating a right shoulder dislocation injury incurred in service on while throwing grenades, the subsequent records make it clear this was a pre-existing condition. See January 1966 clinical records (documenting the Veteran’s report of pre-service right shoulder dislocation incidents); January 1966 orthopedic clinic note (showing admission for evaluation of recurrent right shoulder dislocation, and the most recent episode of shoulder dislocation as December 30, 1965 while throwing grenades during training activities, but also indicating his pre-service multiple dislocations, each reduced by close reduction). Such findings are confirmed by the September 2013 and February 2020 VA examinations/medical opinions pertaining to the right shoulder, which considered the service records and the Veteran’s statements, and concluded that his right shoulder disability clearly and unmistakably pre-existed service. Regarding the second prong, the government may show a lack of aggravation by establishing by clear and unmistakable evidence “that there was no increase in disability during service or that any “increase in disability [was] due to the natural progress of the preexisting condition.” Wagner, 370 F.3d at 1096 (quoting 38 U.S.C. § 1153). This burden of proof must be met by affirmative evidence demonstrating that there was no aggravation. The burden is not met by finding “that the record contains insufficient evidence of aggravation.” Horn v. Shinseki, 25 Vet. App. 231, 236-37 (2012). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered “aggravation in service” unless the underlying condition, as contrasted to symptoms, is worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002). Evidence of the Veteran being asymptomatic on entry into service, with an exacerbation of symptoms during service, does not constitute evidence of aggravation. Green v. Derwinski, 1 Vet. App. 320, 323 (1991). If the disorder becomes worse during service and then improves due to in-service treatment to the point that it was no more disabling than it was at entrance into service, the disorder has not been aggravated by service. Verdon v. Brown, 8 Vet. App. 529 (1996). The most competent and credible evidence of record illustrates that there is clear and unmistakable evidence that the disability was not aggravated by military service. Here, a medical addendum opinion has been obtained since the Board remand (i.e. February 2020 VA examination/medical opinion), in which the examiner opined that the Veteran’s right shoulder condition that clearly and unmistakably existed prior to service was not aggravated beyond its natural progression by an in-service event, injury or illness. Specifically, even after acknowledging the Veteran’s report of having developed right shoulder dislocation while throwing a grenade in service, the examiner indicated that the Veteran’s right shoulder condition started two years prior to military service, and essentially agreed with and reiterated the September 2013 VA examination/medical opinion (furnished by Dr. Valera)—that the Veteran was able to successfully negotiate the horizontal ladder, do push-ups, and crawl without any difficulty in service, that one episode of right shoulder dislocation incurred while throwing a grenade in service is only a natural predisposition of an unstable shoulder, especially considering that the Veteran had three recurrent right shoulder dislocation incidents even prior to service. The examiner ultimately reiterated the September 2013 VA examination/medical opinion that the Veteran’s right shoulder infraspinatus tear, as well as his shoulder degenerative changes (diagnosed in 2013), were only the natural progression of his pre-existing right shoulder disability. There is no other medical evidence to the contrary. As such, VA has met its high burden of showing by clear and unmistakable evidence both that the Veteran’s right shoulder condition preexisted service and was not aggravated by any in-service illness, event, or injury, to include throwing of grenades in service. Thus, the presumption of soundness is rebutted in its entirety. As the presumption of soundness is rebutted, the second element of service connection is not met and entitlement to service connection based on direct theories of entitlement is not warranted. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994).   As such, the preponderance of the evidence is against service connection for right shoulder condition. Reasonable doubt does not arise, and the benefit-of-the-doubt doctrine does not apply; the Veteran’s claim must be denied. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lee 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.