Citation Nr: 21029128 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-39 430 DATE: May 12, 2021 ORDER Entitlement to service connection for a right shoulder disability is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's right shoulder disability had an onset in service. Any arthritis was first shown years after service. CONCLUSION OF LAW The criteria for entitlement to service connection for a right shoulder disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5103, 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 served on active duty from August 1964 to August 1968. The Board of Veterans' Appeals (Board) remanded this matter in November 2018 for further evidentiary development. The case has returned to the Board for appellate review. 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). 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for certain chronic diseases, including arthritis may be presumed if they are manifest to a compensable degree within one year following the date of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. 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 diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported then a showing of continuity of symptomatology after discharge from service is required to support the claim. 38 C.F.R. § 3.303 (b). But to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the "chronic" diseases specifically enumerated in 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; 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). The Veteran is seeking entitlement to service connection for a right shoulder disorder. The Veteran contends that his right shoulder disability is related to his military service. Specifically, the Veteran contends that he injured his right shoulder while he was picking up telephone poles during Boot Camp. The Board observes that the Veteran is service connected for a left shoulder disability. The Veteran asserts that his right shoulder was injured at the same time as his service-connected left shoulder. Regarding a current right shoulder disability, the September 2019 VA examiner confirmed the Veteran's diagnoses of right shoulder glenohumeral joint ostearthritis and degenerative arthritis. Thus, there is evidence of current right shoulder disabilities. Regarding an in-service injury, the Veteran's service treatment records (STRs) are silent as to a complaint of injury to the right shoulder. The Board notes that a September 1967 STR note shows the Veteran complained of left shoulder pain. The August 1968 separation examination shows crepitus left shoulder in motion with full range of motion, there is no indication of right shoulder pain or injury. As for a nexus, the Veteran's private physician submitted a May 2014 private disability benefits questionnaire (DBQ) and he was afforded VA examinations in March 2016 and September 2019. The May 2014 DBQ remarked that tears of ligaments that protect the joints can increase joint susceptibility and lead to premature osteoarthritis, even injuries that do not produce joint injuries may increase risk of osteoarthritis. The private physician did not provide an opinion as to the etiology of the Veteran's right shoulder disability. Additionally, there is no indication that the physician reviewed the Veteran's claims file or records. The March 2016 VA examiner confirmed the Veteran's diagnoses as shoulder right shoulder impingement syndrome and acromioclavicular joint osteoarthritis. The examiner did not provide an opinion as to the etiology of any right shoulder disability. Thus, the Board remanded this matter in November 2018 to afford the Veteran another VA examination in September 2019. The September 2019 VA examiner opined that the Veteran's right shoulder was less likely than not incurred in or caused by his military service. The examiner provided the rationale that the Veteran has a history of left shoulder rotator cuff tendonitis and arthritis which is supported by the documentation provided. The examiner further notes that there is no documentation to support the claim that the right shoulder disabilities are caused or exacerbated by his military service. The Board finds this opinion well-reasoned and thoroughly considered the Veteran's complete medical history and is accordingly afforded high probative value. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (a factor for assessing the probative value of a medical opinion includes the thoroughness and detail of the opinion). The Board notes that there is no opinion in the record to the contrary. The Board notes that lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154 (a); 38 C.F.R. § 3.303 (a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006). The Veteran contends that he believes his current right shoulder disability to be due to his military service. The Board acknowledges the Veteran's lay statements regarding the nature and etiology of his right shoulder disability. However, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., pain, wincing; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, they are not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Consequently, lay assertions of medical diagnosis or etiology alone cannot constitute evidence upon which to grant the claim for service connection. Latham v. Brown, 7 Vet. App. 359, 365 (1995). Accordingly, the Board assigns little probative value to these lay assertions of the etiology of the Veteran's disability. The objective medical evidence does not show that the Veteran's right shoulder disability had its onset in service or was otherwise incurred during his military service. The Veteran's right shoulder disability is first shown years after service, and there is no clinical evidence that it is the type of disability that would be due to his duties in service years earlier. The September 2019 examiner provided a comprehensive opinion after review of all the pertinent evidence. Reference was made to pertinent studies, statements, and clinical history. This is, in the Board's view, persuasive, especially with consideration given to the entire record. Accordingly, based on the evidence discussed above, the Board concludes that the preponderance of the evidence is against the claim of entitlement to service connection for a right shoulder disability. The benefit of the doubt rule does not apply, and the appeal must be denied. See 38 U.S.C. § 5107. MICHAEL D. LYON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Frazier, Associate Attorney 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.