Citation Nr: 21025135 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 19-03 800 DATE: April 27, 2021 ORDER Entitlement to service connection for a right shoulder disability is denied. FINDING OF FACT A right shoulder disability was not manifest in service, did not manifest within one year of separation from service, and is otherwise unrelated to service. CONCLUSION OF LAW A right shoulder disability was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112. 1113, 1131, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1965 to July 1967, in May 1984, and from January 1991 to October 1991, including service in the Republic of Vietnam and in Southwest Asia. He had additional service in the Army Reserves. This appeal stems from a July 2017 administrative decision. The Veteran and his wife provided testimony before the undersigned Veterans Law Judge (VLJ) in October 2019. The VLJ clarified the issues on appeal, clarified the concept of service connection and new and material evidence, identified potential evidentiary defects, clarified the type of evidence that would support the Veteran’s claims, inquired as to the existence of potential outstanding records, and held the record open for 90 days for the submission of additional evidence. It was specifically clarified that the issue on appeal as to the shoulder involves the right and not the left shoulder, and the issue has been amended by the undersigned to reflect this clarification. The actions of the VLJ complied with the requirements of 38 C.F.R. § 3.103. In a March 31, 2020 decision, the Board of Veterans Appeals (Board) issued a decision reopening the Veteran’s claim for service connection for a right shoulder disability and remanding the claim to provide a new VA examination and to obtain a medical opinion. These were obtained in January 2021. The Board’s remand instructions have been substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A Supplemental Statement of the Case was issued in January 2021, and the claim returns to the Board for further consideration. 1. Service connection for a right shoulder disability. The Veteran seeks service connection for a right shoulder disability he contends is due to an injury sustained during self defense practice during boot camp in 1966. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. § 1110 (wartime), 1131 (peacetime). Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Arthritis is considered a chronic disease. For certain chronic diseases, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from 90 days of service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. 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, as distinguished from merely isolated findings or a diagnosis including the word “Chronic.” When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). After reviewing the evidence, the Board concludes that, while the Veteran injured his right shoulder during service and currently has right shoulder disabilities, the preponderance of the evidence is against finding that a current right shoulder disability is related to service. Service treatment records show that on October 4, 1966 the Veteran complained of right shoulder pain for two to three weeks after landing on his right shoulder while practicing judo. There was no acromioclavicular (AC) joint tenderness or displacement, and range of motion was full without pain. He was assessed with a soft tissue injury of the right shoulder. A periodic report of medical history dated October 18, 1966 shows he denied a history of painful or trick shoulders and reported he was in excellent health. He also denied a history of painful or trick shoulders at separation in the July 1967 report of medical history, and the July 1967 separation examination showed clinically normal upper extremities. A June 1976 Army Reserves enlistment examination shows clinically normal upper extremities, and he denied a history of painful or trick shoulders in the accompanying report of medical history. A January 1981 report of medical history shows the Veteran reported a painful or trick shoulder. The Veteran explained that he had occasional slight displacement of the left arm upward against the shoulder joint, and that he had to “tap” it back in place with his right hand. The January 1981 medical examination showed normal upper extremities, with normal range of motion and no pain or arthropathy observed. The Veteran was thrown from a Jeep in May 1984 and injured his neck. We note that he is service connected for a cervical sprain. At a June 1984 followup appointment, he reported discomfort and pain in his left shoulder. A February 1985 report of medical history shows he reported a clicking in his shoulder. The upper extremities were normal in February 1985 and January 1988 medical examinations. A September 1991 medical history shows he reported his left shoulder sometimes clicks, and a trick left shoulder was noted in a July 1992 medical history. The upper extremities were clinically normal in the corresponding medical examinations. A November 1992 report of medical history shows the Veteran reported left shoulder tenderness and pain that was chronic since 1965 due to a PT strain. There is no indication the Veteran reported any right shoulder symptoms during his Reserve service. Although he regularly reported shoulder problems, such reports pertain solely to the left shoulder. We note that the Veteran filed a claim for service connection for left shoulder pain in April 1995. At the May 1995 VA examination he reported that left shoulder pain began in 1965 after he fell during a self-defense exercise. The right shoulder was not mentioned. In August 2017 he was provided a VA examination for chronic fatigue syndrome where he denied migratory joint pains and reported only left shoulder and lower back pain. The Veteran was afforded a VA examination for his right shoulder in January 2019. He denied pain in the right shoulder and referred only to left shoulder pain for the past several years that had progressively worsened. Right shoulder range of motion was all normal, with no pain noted on examination or with weightbearing and non-weight bearing. There was no tenderness or crepitus of the right shoulder. The examiner declined to render an opinion for the right shoulder. The examiner noted the Veteran was treated for a right shoulder soft tissue injury in October 1966, and that there are no further complaints during active duty and that the July 1967 separation examination was silent for a right shoulder condition. There was no subjective or objective pain at the right shoulder at the time of evaluation. Hence, the condition was acute and transient that resolved with treatment at the time. March 2019 VA emergency department notes show the Veteran complained of right chest and shoulder pains for two days that had been present since performing exercise and washing his car. In support of his claim the Veteran submitted an April 2019 shoulder and arm condition disability benefits questionnaire (DBQ) completed by Dr. C.M., who diagnosed right shoulder strain, impingement syndrome, rotator cuff tendonitis, and subacromial/subdeltoid bursitis. Dr. C.M. noted that a date of diagnosis was not available, and that there were vague diagnoses on record. The Veteran dated the onset of his shoulder disabilities to a fall on judo practice in basic training. Initial range of motion testing showed reduced ranges of the right shoulder on all planes of motion, with pain at the end of each range of motion. Dr. C.M. did not offer a nexus opinion. The Veteran testified at a Board hearing in October 2019. Regarding his right shoulder, he reported that he injured his shoulder during personal defense training and began to feel discomfort in the right shoulder with the passage of time. He reported that he began noticing discomfort about a year after he left service in 1966. A January 2020 chest x-ray showed narrowing of the acromioclavicular joints. A March 2020 CT scan showed moderate degenerative changes of both shoulders. An October 2020 CT scan showed arthropathic changes of the shoulders, worse on the left glenohumeral joint. He was provided a new VA examination for the right shoulder in January 2021. Regarding the right shoulder, the examiner diagnosed arthropathic changes of the shoulder joints based on the October 2020 VA imaging report. The Veteran dated the onset of his shoulder problems to 1965 and requiring physical followups and physical therapy. He reported intermittent right shoulder pain with flareups with repetitive motions. Right shoulder flexion and abduction were reduced, with pain on flexion, abduction, and internal and external rotation. The shoulder was tender. Right shoulder Hawkins’ impingement and empty-can tests were positive, and the examiner noted that a rotator cuff condition was suspected. The examiner determined the claimed rights shoulder disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury. The examiner explained that, based on medical evaluation and record review, there is evidence in the STR of a right shoulder soft tissue problem in October 1966 that resolved without complication as seen on other physical examination. The STR is silent for right arthropathic changes of the shoulder joint during service. The examiner concluded the condition is less likely as not related to active service and is more likely related to the natural aging process. For a medical opinion (i.e., medical evidence) to be given weight, it must be: (1) based upon sufficient facts or data; (2) the product of reliable principles and methods; and (3) the result of principles and methods reliably applied to the facts. See Nieves-Rodriquez v. Peake, 22 Vet. App. 295, 302 (2008). Here, we accept the January 2021 VA medical opinion as probative evidence regarding whether right shoulder arthropathic changes are related to service. The examiner rendered the opinion after reviewing the claims file and interviewing the Veteran and provided a rationale that is supported by the pertinent medical evidence of record. We acknowledge that the January 2021 examiner did not address the diagnoses reported in the private April 2019 DBQ. However, the remaining lay and medical evidence does not suggest that right shoulder strain, impingement syndrome, rotator cuff tendonitis, and subacromial/subdeltoid bursitis are related to service. The Board has considered the lay statements of record. The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay people are competent to testify to visible or otherwise observable symptoms of disability. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). In particular, lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition; (2) the layperson is reporting a contemporaneous medical diagnosis; or, (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377. Here, the Veteran is competent to report that he injured his right shoulder during boot camp, and such is documented in his service treatment records. However, while he is also competent to report that he has experienced right shoulder symptoms since the injury, the Board finds these recent assertions less credible than the remaining lay and medical evidence of record. The recent lay and medical statements that he has experienced constant right shoulder symptoms since his first period of active duty, and that his current symptoms are related to the 1966 in-service injury, are less probative than the contemporaneous lay statements. The Veteran denied any shoulder problems at separation in 1967. Medical histories dating from the Veteran’s Reserve service show he continued to deny any shoulder symptoms until January 1981, when he reported left shoulder problems. He continued to report left shoulder problems in subsequent medical histories, with no indication of any right shoulder symptoms. Additionally, the record here is not silent. The Veteran denied any shoulder symptoms in reports of medical history until January 1981, and then only reported left shoulder problems for the remainder of his active duty and Reserves service. There is also little indication the Veteran actually had a right shoulder disability until March 2019. He reported only neck and left shoulder pains when asked about joint pains in an August 2017 VA examination for chronic fatigue syndrome. He denied any right shoulder problems at the January 2019 VA examination, at which time physical examination revealed no right shoulder disability. Treatment records are entirely silent for any right shoulder symptoms from October 1966 until March 2019, when the Veteran injured his right shoulder. A negative inference is drawn from the absence of complaints or treatment for an extended period. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). We also note that, when Dr. C.M. completed the April 2019 DBQ, he indicated that he had only reviewed the Veteran’s service treatment records and appears to have been unaware that the Veteran injured his shoulder in March 2019. In its role as factfinder, the Board is obligated to determine whether lay evidence is credible. Buchanan, 451 F.3d at 1337. In doing so, the Board may properly consider facts such as internal inconsistency of statements, facial plausibility, and consistency with other evidence. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996); Macarubbo v. Gober, 10 Vet. App. 388 (1997). To the extent the Veteran contends that his current right shoulder symptoms are related to the 1966 injury and have been constant ever since, such statements are notably inconsistent with the remainder of the record, including all medical evidence and his prior lay statements. The recent lay recounting is not credible. Regarding arthritis, imaging reports have shown degenerative changes in the Veteran’s right shoulder. To the extent he has arthritis of the right shoulder, the evidence is against finding the arthritis manifested in service or within one year of separation. Arthritis of the right shoulder was not identified in the service treatment records. The Veteran’s statements as to onset and continuity of his current right shoulder symptoms are inconsistent with the remainder of the record, which shows a soft-tissue injury in 1966 which had resolved at separation in 1967, and is absent any right shoulder symptoms until the March 2019 injury. The most credible, probative evidence shows the Veteran did not have characteristic manifestations sufficient to identify a chronic disease entity during service or within one year of separation from service. 38 C.F.R. § 3.303 (b). We conclude that the Veteran’s denial of pertinent symptoms at separation in 1967, his subsequent reports of only left shoulder problems, and the absence of any evidence of a right shoulder disability until over fifty years after separation, are more probative and credible than the lay evidence submitted in support of the claim for benefits. We also note that there is a supported diagnosis of pathology, thus not an undiagnosed illness. Furthermore, there is no evidence of a relationship to combat. Therefore, the combat provisions of section 1154 are not applicable. In sum, the Veteran injured his right shoulder during service in 1966. However, there is insufficient probative, credible evidence linking the Veteran’s current right shoulder disability to that injury, or suggesting his current disability is otherwise related to a period of service. The preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Service connection for a right shoulder disability is denied. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Morse 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.