Citation Nr: 21029160 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 16-62 613 DATE: May 12, 2021 ORDER Entitlement to service connection for a left shoulder disability is granted. Entitlement to service connection for Chronic Fatigue Syndrome (CFS) is denied. Entitlement to service connection for a right shoulder disability is granted. REMANDED Entitlement to service connection for obstructive sleep apnea (OSA), to include as secondary to a shoulder disability, is remanded. FINDINGS OF FACT 1. The evidence of record reasonably shows the Veteran's left shoulder disability is related to his military service. 2. CFS has not been shown and is not attributable to service. 4. The evidence of record reasonably shows the Veteran's right shoulder disability is related to his military service. CONCLUSIONS OF LAW 1. The criteria for service connection for a left shoulder disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria for service connection for CFS have not been met. 38 U.S.C. §§ 1110, 1131, 5103 (a), 5103A, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317. 3. The criteria for service connection for a right shoulder disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from December 1987 to December 1991. The Veteran's MOS was Security Specialist protecting perimeters of Misawa Air Force base (AFB) in Japan, Nellis AFB in Las Vegas, NV and Clark AFB, Philippines. See September 2011 VA Form 21-4138, Statement in Support of Claim. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), Los Angeles, California, denying all claims currently on appeal. By way of history, in May 2014 the Veteran filed a VA Form 21-0958 Notice of Disagreement (NOD). In June 2014, the Veteran filed another VA Form 21-0958 Notice of Disagreement for the same conditions requesting contact by the RO. In July 2014, the Veteran requested Decision Officer Review (DRO) of his claims. In October 2016, a DRO review was completed and a Statement of the Case (SOC) was issued which denied his claims. See October 17, 2016 Statement of the Case. In December 2016, the Veteran timely filed a Form 9 Appeal to the Board and provided an extensive explanation of his reasons for disagreement and requested a live hearing. See December 2016, Form 9. In March 2018, the Veteran's representative submitted an Appellant's hearing related brief. In February 2020, the Veteran testified at a videoconference hearing before Veterans Law Judge (VLJ) David Wright. Parts of the hearing were inaudible, and the transcriptionist was unable to fully provide a transcript. In February 2021, the Veteran testified at a videoconference hearing before the undersigned VLJ. A transcript of the hearing is associated with the claims file. After the February 2021 hearing, the Veteran submitted a waiver of Agency of Original Jurisdiction (AOJ) review of the evidence provided therein. See February 10, 2021 Correspondence (waiving AOJ consideration of evidence provided on that date which consisted of a summary of lay statements, list of nexus arguments, a sleep log from June 2014 to December 2016, and list of VA and private opinions dating from 2010 to 2015). Service Connection Generally, to establish service connection, there must be lay or medical evidence of (1) a current disability, (2) incurrence or aggravation of a disease or injury in service, and (3) a nexus between the in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). Service connection may also be established when the evidence shows that a Veteran had a chronic condition in service or during the applicable presumptive period. 38 C.F.R. § 3.303(b). Arthritis may be presumed to have been incurred or aggravated during service if it becomes disabling to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established on a secondary basis when a disability is shown to be proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439 (1995). The competence, credibility, and probative (relative) weight of evidence, including lay evidence must be assessed. See generally 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 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; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Left shoulder disability The Veteran contends that his left shoulder disability is related to active service. The Board finds that service connection for left shoulder disability is warranted. First, the Veteran has a current left shoulder disability. He has been diagnosed with left shoulder degenerative arthritis. See October 2017 VA examination. Thus, he satisfies the first element of service connection for his left shoulder claim. Second, the Board finds that there is competent, credible evidence of an in-service event, disease, or injury. The Veteran submitted a private opinion that his shoulder issues were due to service. See November 17, 2015 Private Opinion Dr. M.D.D. However, the Board finds that the private opinion was conclusory as it did not provide an adequate rationale. In January 2017, the VA examiner noted that the Veteran's Service Treatment Records (STRs) indicated that the Veteran complained of left shoulder pain which was noted as "capsulitis." The examiner explained that capsulitis is an inflammatory condition that restricts shoulder movements, which is consistent with his current left shoulder disability residuals from his left shoulder condition first experienced while on active duty. The Veteran asserted that his left shoulder pain began in service as due to carrying heavy equipment, and in the alternative, after he was bitten by insects while on duty in the Philippines. Thus, the Board finds that there was an in-service event or injury thereby satisfying the second element of service connection for the claim. Third, the Board finds that the evidence is at least in equipoise as to whether the Veteran's current left shoulder disability is related to service. A January 2017 examiner opined that the Veteran's left shoulder disability is at least as likely as not related to service. In contrast, a February 2014 VA examiner opined that the Veteran's bilateral shoulder condition is less likely than not related to service because his separation examination did not note a complaint regarding his shoulders. There are positive and negative opinions of record, both proffered by competent and credible clinicians. As the positive and negative evidence is in equipoise, the Board resolves all reasonable doubt in the Veteran's favor in finding that service connection is warranted for his left shoulder disability. 2. Entitlement to service connection for CFS The Veteran contends that he was bitten by several insects and after that time he has had persistent symptoms of CFS. Regarding the first service connection element, evidence of a current diagnosis, the Veteran does not have a diagnosis of CFS. See November 2012, February 2014, and June 2020 VA Examinations. Further, there is no record of treatment for CFS either in the Veteran's VA treatment records (CAPRI), private treatment records, or STRs. Therefore, the first element is not satisfied. The Board notes that the Veteran provided a private medical opinion that his fatigue is related to service. However, the private opinion is conclusory and based the information on whether the Veteran has fatigue based on his own report rather than a complete review of his medical records. Notably, while opining on whether the Veteran's fatigue is related to service, Dr. M.D.D. did not include a diagnosis of CFS. Although the Veteran submitted additional evidence in May 2020, the evidence does not address CFS. Further, the Veteran submitted additional evidence in support of his claim in February 2021. Dr. B.W.'s letter was commenting on OSA and did not indicate a diagnosis of CFS. Again, although Dr. M.D.D.'s letter from March 2013 stated that the Veteran's fatigue is caused by service, the opinion was conclusory, did not indicate of review of the Veteran's medical records and did not state that the Veteran has a diagnosis of CFS. Consequently, Dr. M.D.D.'s opinion is entitled to no probative weight. In sum, the Veteran has not provided a competent medical opinion that he has CFS, or a probative medical nexus opinion linking CFS to service. Although the Veteran believes he has CFS related to service, he is not competent to provide a nexus opinion in this case. The issue is medically complex, as it requires knowledge of the interaction between multiple organ systems in the body or interpretation of complicated medical testing. Consequently, the Board gives more probative weight to the VA medical opinions which based their conclusions on a review of the entire claim file, consideration of the Veteran's lay statements, medical records, and STRs. 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. Absent competent evidence of a diagnosis of CFS, the Board finds that a preponderance of the evidence is against the Veteran's claim, and the claim must be denied. 3. Entitlement to service connection for a right shoulder disability The Veteran contends that his right shoulder disability is related to service. More specifically, the contends that it is due to physical activity and exercises and the equipment he was asked to carry to and from work in service. The Veteran also stated that carrying an M-60 machine gun during war exercises, along with ammunition and his war bag, contributed to his shoulder injuries. The Veteran has also testified that his right shoulder has bothered him since the incident with insect bites. Regarding the first service connection element, the Veteran has a current diagnosis of right shoulder bursitis. However, a review of the medical records also shows X-ray findings of degenerative changes involving the right shoulder AC joint. Regarding the second service connection element, the Veteran must show evidence of an in-service incurrence. As previously noted, the Board has found that the second element is met with an in-service incurrence event or injury after the insect bite incident and treatment for shoulder pain. Although the Board notes that the Veteran complained of left shoulder pain in service, his subsequent testimony and lay statements describe bilateral shoulder pain. VA examinations also noted his complaints of bilateral shoulder pain. There is conflicting evidence of whether it was left shoulder versus bilateral shoulder pain, but the Board notes that the evidence is in equipoise regarding the description of the in-service shoulder pain as merely left shoulder pain, or as bilateral shoulder pain. Therefore, finding the benefit of the doubt for the Veteran, the Board finds that the Veteran right shoulder pain began while in service. Regarding the third element of service connection, the Veteran must show evidence of a nexus between in-service injury and his current disability. The Veteran was provided a VA Shoulder examination in February 2014. The examiner opined that the right shoulder bursitis is not related to service because there was no in-service treatment, no complaints at separation. The 2014 examiner determined that STRs did not indicate treatment for a right shoulder, therefore it was less likely than not that his current right shoulder condition is related to service. The Board finds the 2014 VA right shoulder examination opinion is inadequate for two reasons. First, the Board notes that a lack of medical documentation alone is not a valid basis for a negative medical opinion where the Veteran's statements must be considered. Second, it is based on an inaccurate factual premise because radiological findings show evidence of right shoulder arthritis, not merely bursitis. The Board finds the 2014 examination is entitled to no probative weight. The Veteran was provided a new examination in January 2017. The examiner noted that the right shoulder exhibited a positive Hawkin's sign and pain with range of motion (ROM) testing. The examiner reviewed the February 28, 2014 right shoulder X-ray report and opined that since STRs did not indicate treatment for a right shoulder, it was less likely than not that his current right shoulder condition is related to service. However, as noted above, a lack of medical documentation alone is not a valid basis for a negative nexus opinion. To the extent the January 2017 VA examiner opined that the right shoulder is less likely service related largely based on a lack of medical documentation of right shoulder issues in service, the Board finds it is entitled to little probative weight. In this case, the Veteran has degenerative arthritis of the right shoulder AC joint. Arthritis is a chronic disease under 38 C.F.R. § 3.309(a). Thus, the Veteran's right shoulder arthritis qualifies for a presumptive service connection provided there is evidence of a continuity of symptoms since service. Weighing in favor of the claim are competent lay statements of the continuity of right shoulder pain since service. The Board finds that the evidence weighing in favor of a finding that the onset and continuity of symptoms since service and in favor of the claim outweighs the February 2014 and January 2017 VA examiner's negative nexus opinion. As such, the Board finds that service connection is warranted for a right shoulder disability. The claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for OSA The Veteran contends his OSA is related to service, or as secondary to his shoulder disability. The Veteran was afforded an OSA VA examination in February 2014, however the examiner did not provide a secondary service connection opinion related to his now service-connected bilateral shoulder condition. Therefore, a remand is needed to obtain an addendum opinion to the February 2014 VA examination. The matter is REMANDED for the following: 1. Obtain an addendum opinion for the February 2014 OSA examination. The need to physically examine the Veteran is left to the discretion of the examiner. The examiner is asked to address the following: a) Is it as least as likely as not that OSA was caused by his service-connected shoulder condition? b) Is it as least as likely as not that OSA was aggravated by his service-connected shoulder condition? Rationale should be provided for all findings and conclusions. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McKenzie, Associate 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.