Citation Nr: 21024782 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 14-29 340 DATE: April 26, 2021 ORDER Entitlement to service connection for residuals of a right clavicle injury is denied. FINDING OF FACT Any residuals of a right clavicle injury are not related to the Veteran’s active service and arthritis of the right clavicle was not manifest during active service or within one year of active service. CONCLUSION OF LAW The criteria for entitlement to service connection for residuals of a right clavicle injury have not been met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1979 to September 1981. In April 2018, the Board denied the Veteran’s claim. He appealed that decision to the United States Court of Appeals for Veterans Claims (CAVC) and by a March 2019 Order, CAVC granted a joint motion for remand. The basis of the denial was that the Veteran was not afforded a hearing. In January 2020, he testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing. A transcript of the hearing is of record. Following his hearing, the Board sought additional VA medical opinions. Such opinions were obtained in October 2020 and February 2021. There has been substantial compliance with the Board’s prior remand directives. As such, the Board will proceed to adjudicate the claim. Entitlement to service connection for residuals of a right clavicle injury. 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; 38 C.F.R. § 3.303(a). Service connection may 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). Only chronic diseases listed under 38 C.F.R. § 3.309(a), which includes arthritis, are entitled to the presumptive service connection provisions of 38 C.F.R. § 3.303(b). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Establishing service connection generally requires (1) medical 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) medical 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 Veteran maintains that residuals from a right clavicle injury, also claimed as a right shoulder fracture, were incurred in service and his right clavicle symptoms have continued since service. Specifically, he asserts that he injured his right shoulder in a motorcycle accident which occurred while in service. The Board notes that he is service connected for left shoulder distal fracture and injury to the left shoulder is well-documented within the Veteran’s service treatment records. Service treatment records detail the Veteran seeking treatment for a fractured left shoulder after a motorcycle accident. A February 1978 treatment record confirms the Veteran fractured his left clavicle. There is no mention of a right shoulder fracture or a right shoulder injury in any treatment note concerning the motorcycle accident. There is a single treatment note dated July 1979 which records right shoulder pain. The Board notes that in the treatment note the word “shoulder” is crossed out and replaced with the word “back.” Otherwise, service treatment notes are silent as to a diagnosis or treatment for right shoulder injury or pain. Regardless, based on the Veteran’s lay statements and contentions, the Board has sought several VA medical opinions addressing the etiology of the Veteran’s right shoulder impingement syndrome with degenerative arthritis. A December 2016 VA examination confirmed diagnosis of right shoulder impingement syndrome and acromioclavicular joint osteoarthritis. The examiner opined that it was less likely than not that the Veteran’s right shoulder disability was related to active service. As rationale, the examiner stated that there was no documentation of a right shoulder injury in service treatment records, and the Veteran’s x-rays dated June 2014 reflect old trauma to the distal clavicle but did not reflect trauma to the right shoulder. A December 2016 VA medical addendum opinion states that there was no documentation to support the Veteran was evaluated for right shoulder condition or pain during his active service. The examiner also noted the first instance of bilateral shoulder pain was in March 2014. The examiner confirmed her previous opinion that the Veteran’s right shoulder disability was less likely than not related to his military service because of the lack of in-service documentation of injury and the length of time between active service and first report of injury. Similarly, in February 2020, the Veteran was afforded an additional in-person VA examination. The examiner opined that the Veteran’s right shoulder condition was less likely than not related to service. In support of his rationale, the examiner noted that the Veteran did not have any chronicity of care for his right shoulder from 1981 until 2014. Right shoulder arthritis was found 34 years post-service and therefore the examiner could not relate such arthritis to the Veteran’s military service. In a September 2020 VA addendum opinion, the examiner noted the Veteran’s lay reports that he was put in a figure 8 strap for four to six months following a motorcycle accident in service and that he continued to work as a carrier on the flight line during this time. The examiner also noted the Veteran’s reports regarding going to sick bay for right shoulder pain but being given Tylenol and being told to go back to work. The examiner opined that the current diagnosis of impingement syndrome and acromioclavicular joint arthritis would less likely than not develop from an in-service clavicle fracture. The examiner essentially explained that had the clavicle fracture occurred there would have been significant treatment for such during service or, at the very least, would have been noted prior to separation from service. The Veteran’s service treatment records do not document as much. The Board sought additional VA medical opinion in August 2020. The examiner was specifically directed to consider the Veteran’s lay reports of right shoulder pain beginning in 1982, almost immediately following service. Such opinion was obtained in February 2021. The examiner again opined that the Veteran’s right shoulder condition was less likely than not related to service. As rationale, the examiner stated: The left distal fracture is well documented in records beginning 2/8/1979. Records in July 1978, including imaging, show a well-healed [left distal fracture] with no sequelae. There is absolutely no record of a concurrent right shoulder injury. There is no evidence of a right shoulder condition until or around March 2014 . . . There is no evidence of a right shoulder condition in 1983 or on the DBQ in 1985. The Veteran again reported a right fractured clavicle on the DBQ in 2016. There is no imaging evidence to support that the Veteran has had a fracture of the right clavicle, ever . . . The current diagnoses of right impingement and AC arthritis are less likely than not related to the motorcycle accident in service or events in service in general. If the Veteran suffered a clavicular fracture on the right, it almost certainly occurred after service. Despite the Veteran’s complaints of right shoulder pain in service and since service, the medical evidence does not support that claim and actually contradicts it. Osteoarthritis is an age-related condition that was age-appropriate at the time of diagnosis. Arthritis can cause shoulder impingement syndrome and is at least as likely as not the cause. If there is another cause of the shoulder impingement syndrome, it clearly did not arise in service. In the Veteran’s own words at the time of evaluation for the MVA, he noted falling on the left shoulder. The right shoulder would not be involved in such an impact . . . Any injury arising from the trauma would have been evidenced at the time of that trauma or proximate to it. It almost certainly would have manifest before 2014. Any x-ray performed 1.5 years post-service almost certainly was done for an acute event arising after service. X-rays are not generally done for any other reason than trauma at the age the Veteran would have been shortly after service. One would not anticipate finding osteoarthritis at that age and soft tissue diagnoses would not be rendered on the basis of an X-ray. The Veteran’s current diagnoses are more likely than not age and use related, with normal wear and tear (confidence level greater than 99 percent). Medical treatment records reflect complaints and treatment of right shoulder pain as well as the Veteran’s continued assertion that his right shoulder injury was caused by an in-service motorcycle accident. No medical treatment notes give an etiological opinion concerning the Veteran’s right shoulder injury. Based on a review of the evidence, the Board concludes that service connection for residuals of a right clavicle injury, also claimed as a right should fracture, is not warranted. Although the evidence shows that the Veteran had an incident of left shoulder fracture, there is no evidence that the right shoulder was also injured or treated. The Board notes that there is one note of right shoulder pain, though the word “shoulder” was crossed out and replaced with the word “back.” Assuming the treatment note referred to right shoulder pain, it does not establish that any diagnosed disorder is related to military service. Contrary to the Veteran’s assertions that both of his shoulders were injured in his motorcycle accident, medical treatment records immediately after the incident only mention treatment to the left clavicle. None of the Veteran’s medical treatment records contain any opinion relating a currently diagnosed right shoulder disability as having its onset during his military service. There is no contrary medical opinion of record. In light of the lack of any medical opinion that the onset of a currently diagnosed right shoulder disability occurred during service, the Board concludes that the Veteran’s current right shoulder disorder did not begin during service. In this case, the contemporaneous service records and post-service treatment records all fail to show that any currently diagnosed right shoulder disability is related to the Veteran’s military service or that his right shoulder disability began during service. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Furthermore, as the evidence does not show that any arthritis was diagnosed or manifest to a degree of 10 percent or more within one year of discharge, the Board finds that service connection on a presumptive basis is not warranted. Similarly, the Board also finds that the evidence does not establish a continuity of symptomatology. 38 C.F.R. § 3.309. The Board acknowledges the Veteran’s reports of having right shoulder problems since service. However, record does not reflect continuity of right shoulder symptomatology since service. In this case, the contemporaneous evidence fails to show a continuity of right shoulder symptomatology following the Veteran’s one in-service complaint. The Board has considered the lay statements of the Veteran as well as his sincere belief that his right shoulder disability is related to service. The Board notes that although lay persons are competent to provide opinions on some medical issues, the specific issue of a relationship between a right shoulder disability and active service is outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Thus, the Board affords more weight to the clinical evidence of record, including the several VA medical opinions obtained. Service treatment reports show only one complaint of right shoulder pain. Further, post-service medical records do not reflect any continuity of symptomatology, medical treatment, or other manner of perception of pain or pathology of a right shoulder disability in the year proximately following service. VA examiners considered the Veteran’s contentions but found that his current right shoulder disability was not etiologically linked to service, and the Veteran has submitted no competent nexus evidence contrary to the VA examiners’ opinions. The Veteran has been allowed ample opportunity to furnish medical evidence in support of his claim, but he has not done so. The Board finds the VA medical examiner’s opinions are well-reasoned and thorough, having considered the entire record, including the Veteran’s medical history, and provide specific medical evidence for the opinions rendered. They are also not contradicted by any other medical evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The preponderance of the evidence is against the claim. Thus, the benefit of the doubt doctrine does not apply, and service connection for residuals of a right clavicle injury, also claimed as a right shoulder fracture, is not warranted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, 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.