Citation Nr: 21024430 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 12-31 465A DATE: April 22, 2021 ORDER Service connection for a left shoulder disability is denied. REMANDED Entitlement to service connection for erectile dysfunction is remanded. FINDING OF FACT Symptoms of a left shoulder disability were not continuous or recurrent in service or since service separation; arthritis did not manifest to a compensable degree within one year of active service; and there is no medical nexus between the current left shoulder disability and active service. CONCLUSION OF LAW The criteria for service connection for a left shoulder disability are not met. 38 U.S.C. §§ 101, 1101, 1110, 1112, 1113, 1131, 1153, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the Appellant in this case, had active service from May 1973 to May 1993. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from January 2011 and November 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). These claims have been before the Board on several occasions. Most recently, in January 2021, the Board remanded the issues on appeal for further development. The development requested having been completed with regard to the claimed left shoulder disability, that claim is now appropriate for appellate review. For the reasons discussed below, another remand is required with regard to the claimed erectile dysfunction. 1. Service connection for a left shoulder disability is denied. The Veteran contends that he injured his left shoulder during active service. At a December 2018 VA examination, he reported that he injured it during a weightlifting incident in 1983. At November 2020 and March 2021 VA examinations, he reported that he injured it when he fell down a flight of stairs while stationed in Germany in the 1980s. For the reasons discussed below, the Board finds that the weight of the evidence is against a finding of a medical nexus between the current left shoulder disability and active service, and that service connection for the claimed disability is not warranted. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) competent 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) competent evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The United States Court of Appeals for Veterans Claims (Court) has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as arthritis, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in 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. See 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. In this case, the medical evidence of record demonstrates left shoulder arthritis. Where the veteran asserts entitlement to service connection for a chronic disease but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.303(b) by demonstrating a continuity of symptomatology since service or diagnosis within the presumptive period after service, but only if the chronic disease is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013); 38 C.F.R. § 3.307 (service connection authorized for chronic diseases diagnosed within the presumptive period). However, for the reasons set forth below, the Veteran was not diagnosed with arthritis within one year of separation from service, nor has there been continuity of symptomatology. With specific regard to continuity of symptomatology, for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition, such as arthritis, noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Reviewing the most relevant evidence of record, service treatment records are entirely negative for any signs, symptoms, reports, findings, treatment, or diagnoses of a left shoulder disability. Of note, there is a January 1984 treatment record indicating that the veteran injured his mid and low back when he slipped on ice, with no mention of any left shoulder problems. There is also a June 1985 Line of Duty Determination that indicates that in May 1985, the Veteran slipped on wet rocks by the tent showers and sustained a back strain at an air base in Germany, again with no mention of left shoulder problems. The May 1985 treatment record associated with this incident also indicates that the Veteran had previously injured his back during a weightlifting incident in August 1984, with no mention of a left shoulder problem. Following separation from active service, according to the December 2018 VA examination report, the Veteran began working for the post office in 1994. In June 1996, the Veteran was diagnosed with bilateral rotator cuff tendonitis and received injections into both shoulders. X-ray studies were negative for acromioclavicular joint arthritis. A July 1996 follow-up treatment note focused on evaluation of the right shoulder only. An April 2003 VA treatment note indicates a history of bilateral shoulder problems. On a February 2005 VA Form 21-526, the Veteran indicated that his left shoulder disability began in January 1992. He was afforded a VA shoulder examination in August 2010. Left shoulder range of motion was more limited than that of the service-connected right shoulder. The examiner indicated that the left shoulder had pain and lack of endurance, painful motion, tenderness, abnormal movement, and guarding of movement. No nexus opinion was rendered. The Veteran was afforded another VA shoulder examination in December 2018. The examiner diagnosed left shoulder degenerative arthritis. The Veteran reported he had a weightlifting accident and injured both shoulders and received treatment while in service in 1983. He denied injury or trauma to left shoulder since service. He reported that he had a post office job since 1994, initially as a mail handler for one year, moving heavy equipment and containers; he had operated a forklift since. The examiner opined that the left shoulder condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, to include any symptomatology therein, reasoning that the available electronic records were silent for a left shoulder condition, injury, or symptoms while in service, and that there was only one notation of a left shoulder condition in June 1996 when the Veteran received a steroid injection for rotator cuff tendonitis and left shoulder x-ray was negative. The examiner further stated that the chronicity of the current left shoulder DJD was not supported by the objective medical evidence. Rather, DJD of the shoulder was related to the aging process and is a function of his life as well. At a November 2020 VA shoulder examination, the examiner assessed rotator cuff tendonitis. The Veteran stated he hurt both shoulders when he fell down a flight of stairs in Germany. The examiner noted that there was no mention of the shoulder in the service treatment records. The Veteran stated he was diagnosed with bilateral rotator cuff tendinitis at Walter Reed in 1996. The examiner opined that his left shoulder rotator cuff tendinitis and rotator cuff tear were less likely than not related to the military, stating there were no records of him having a left shoulder injury in active service or within one year after separation. At a March 2021 VA shoulder examination, the examiner diagnosed shoulder impingement syndrome, rotator cuff tendonitis, and acromioclavicular joint osteoarthritis. The Veteran stated that his left shoulder problem began when he was stationed overseas in the 1980s and fell down two flights of stairs. Some years later, while still in active service, he reported that he was hospitalized for back and left shoulder pain. After service, he was diagnosed with tendonitis and a rotator cuff problem and treated with a cortisone injection. He was currently retired after 26 years as a forklift driver for the postal service. He stated that when his shoulder worsened while working at the post office, he filed a claim and was given light duty counting mail. An x-ray revealed mild AC joint degenerative change, and mild irregularity of the greater tuberosity suggested rotator cuff pathology. The examiner stated that he reviewed all of the evidence listed in the Board’s remand directives, and opined that the current left shoulder condition less likely than not had its onset during the Veteran’s period of active service or was caused by any incident or event that occurred during such period. Despite the Veteran’s assertion, the examiner found no evidence of a chronic left shoulder condition in his service treatment records. Further, by his own report today, after service, he went on to work in the postal service for 26 years driving a forklift and counting mail, jobs that require repetitive upper extremity use, especially driving a forklift, which requires both upper extremity and shoulder use; thus, the Veteran’s job driving a forklift was the likely etiology for the current diagnosed left shoulder condition. After a review of all the evidence of record, lay and medical, the Board finds that the preponderance of the evidence demonstrates that symptoms of a left shoulder disability were not continuous or recurrent in service. As noted above, the service treatment records are negative for any signs, symptoms, reports, findings, treatment, or diagnoses of a left shoulder condition. The Board acknowledges the Veteran’s statements that he injured his left shoulder during a weight lifting incident and/or falling down stairs, but notes that shoulder problems are not documented in the service treatment records, including in records that appear to describe mechanism of injury (weight lifting/falling down steps) that the Veteran now alleges caused his current left shoulder problem. The Board finds the more contemporaneous service treatment records to be more probative as to the question of whether he injured his left shoulder in service than the Veteran’s current statements regarding his injuries more than 30 years ago. For these reasons, the Board finds that the weight of the evidence is against a finding that a left shoulder disability manifested during active service. If there is no showing of a chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). The Board next finds that the preponderance of the evidence demonstrates that symptoms of a left shoulder disability have not been continuous or recurrent since separation from active service in 1993. Following separation from service in 1993, the evidence of record does not show any complaints, diagnosis, or treatment for a left shoulder problem until 1996. The absence of post-service complaints, findings, diagnosis, or treatment for a left shoulder disability for 3 years after service separation is one factor that tends to weigh against a finding of continuous or recurrent symptoms of a left shoulder disability after service separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). The Board also finds that the preponderance of the evidence demonstrates that arthritis did not manifest to a compensable degree within one year of service separation. The preponderance of the evidence demonstrates no arthritis symptoms during the one-year period after service, and no diagnosis or findings of arthritis of any severity during the one-year post-service presumptive period. Indeed, as discussed above, the evidence does not demonstrate a diagnosis of arthritis until 2018. For these reasons, the Board finds that arthritis did not manifest to a compensable degree within one year of service separation; therefore, the presumptive provisions for arthritis are not applicable in this case. 38 C.F.R. §§ 3.307, 3.309. With regard to the Veteran’s recent assertions made in the context of the current disability claim of continuous or recurrent left shoulder symptoms since service, the Board finds that these more recent assertions are outweighed by the other, more contemporaneous, lay and medical evidence of record, both in service and after service, and are not reliable. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds that the Veteran’s assertions of chronic left shoulder symptoms after service are not accurate because they are outweighed by other evidence of record that includes the more contemporaneous service treatment records, which are negative for left shoulder problems, and the lack of any documentation of reports or treatment for a left shoulder disability until 1996, 3 years after service separation. As such, the Board does not find that the evidence sufficiently supports continuous or recurrent left shoulder symptomatology since service, so as to warrant a finding of a nexus between the current disorder and active service under 38 C.F.R. § 3.303(b). The Board acknowledges the Veteran’s statements that he experienced left shoulder symptoms during and since active service, and that he believes that his current left shoulder disability is related to an injury in active service. Indeed, the Veteran is competent to provide evidence regarding matters that can be perceived by the senses, and he is competent in some instances to provide a competent opinion regarding etiology. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology). However, the Board finds that the opinion provided by the VA examiner in 2021, discussed above, is more probative than the Veteran’s lay assertions. The VA examiner has expertise, education, and training that the Veteran is not shown to have. As such, the examiner’s etiology opinion is afforded more weight. Indeed, the 2021 VA opinion is the most probative evidence of record on the question of whether there is a nexus between the current left shoulder disability and active service. The VA opinion is competent and probative medical evidence because it is factually accurate and is supported by a thorough rationale. The VA examiner was informed of the pertinent evidence, reviewed the Veteran’s claims file, and fully articulated the opinion in the report. There are no contrary competent medical opinions of record. Based on the evidence of record, the weight of the competent evidence demonstrates no relationship between the Veteran’s current left shoulder disability and his military service, including no credible evidence of continuous or recurrent symptoms of a left shoulder disability during active service, continuous or recurrent symptomatology of a left shoulder disability following service separation, or competent medical evidence establishing a link between the Veteran’s left shoulder disability and active service. Therefore, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against the claim for service connection for a left shoulder disability and outweighs the Veteran’s more recent contentions regarding in-service continuous or recurrent symptoms and continuous or recurrent post-service symptoms. For these reasons, the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for erectile dysfunction is remanded. The January 2021 Board decision found that the December 2018 and November 2020 VA examinations pertaining to the claimed erectile dysfunction were inadequate and remanded the case to obtain a new VA opinion regarding the etiology of the Veteran’s erectile dysfunction. In pertinent part, the Board directed the examiner to review and address the November 2014 private medical opinion that the medications taken for service-connected disabilities contributed to the Veteran’s erectile dysfunction, the December 2018 VA opinion that the Veteran’s erectile dysfunction was secondary to hypogonadism, and the private medical records which also indicated that erectile dysfunction was secondary to hypogonadism and indicated that treatment for hypogonadism dated back to active service. A VA opinion was obtained in February 2021. While the examiner indicated that he reviewed the Veteran’s records, he did not address the November 2014 private medical opinion, the December 2018 VA opinion, or the private medical records in the examination report, as requested by the Board. While the Board regrets the additional delay, another remand is necessary to obtain another VA opinion regarding the claimed erectile dysfunction that complies with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). The matter is REMANDED for the following action: Obtain a VA opinion and examination, if deemed necessary, from an appropriate specialist regarding the nature and etiology of the Veteran’s erectile dysfunction. Any and all indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished, and a rationale for any opinion expressed should be provided. The claims file, including a copy of this decision, must be made available to the examiner for review of the history in conjunction with the examination, and the examination report should reflect that such review was accomplished. The examiner should offer an opinion as to whether it is at least as likely as not (i.e., to at least a 50/50 degree of probability) that the Veteran’s current erectile dysfunction (a) had its onset during the Veteran’s period of active service; or, (b) was caused by any incident or event that occurred during such period, including treatment for hypogonadism; or (c) was caused or aggravated by a service-connected disability or the medications taken for service-connected disabilities. In rendering the opinion, the examiner should specifically discuss the following: (a) the Veteran’s reported history, including his lay statements (the examiner is reminded that the Veteran is competent to attest to any lay observable symptoms and past treatment); (b) the November 2014 private medical opinion; (c) the December 2018 VA opinion indicating that the erectile dysfunction is secondary to hypogonadism; and (d) the private medical records indicating erectile dysfunction is secondary to hypogonadism and indicating treatment for hypogonadism dating back to the Veteran’s active service. Note: The term “at least as likely as not” does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. [CONTINUED ON NEXT PAGE] All opinions are to be accompanied by a rationale consistent with the evidence of record. A discussion of the pertinent evidence, relevant medical treatises, and generally accepted medical principles is requested. If the examiner cannot provide an opinion without resorting to speculation, he or she shall provide complete explanations stating why this is so. In so doing, the examiner shall explain whether any inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Sherrard, 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.