Citation Nr: 21040592 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-39 699 DATE: July 6, 2021 ORDER Service connection for a right shoulder disorder is denied. REMANDED Entitlement to service connection for a right knee disorder is remanded. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's right shoulder disorder manifested in service, within one year of separation from service, or is otherwise related to service. CONCLUSION OF LAW The criteria for service connection for a right shoulder disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1965 to March 1974. In September 2019, the Veteran testified at a videconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing has been associated with the record. In November 2019, the Board remanded the current claims for additional development. 1. Entitlement to service connection for a right shoulder disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Although the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). 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. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran seeks service connection for a right shoulder disorder and asserts that this disorder is related to injuries he sustained during active service when he slipped and fell off a flatbed truck in 1966 in Weeden, Germany and when he was playing football in 1969. See April 2017 Correspondence and September 2019 Board Hearing Transcript. In spite of the Veteran's contentions that he had a right shoulder injury during service, the preponderance of the evidence is against a finding that the Veteran's current right shoulder disability was incurred in or is otherwise related to service. In that regard, the Veteran's service treatment records (STRs) are silent for any complaints, treatment, or diagnosis for any shoulder problems. Moreover, in January 1979, when he was evaluated for separation from service, his upper extremities were clinically evaluated as normal and, in August 1982, he reported no trick or locked knee and no bone or other joint deformity. Postservice, the Veteran's VA treatment records reflect that the onset of his right shoulder pain was in 2008. See November 2008 VA Treatment records. Specifically, in November 2008, the Veteran reported that his right shoulder pain had only occurred within the last 2 months. Notably, neither the Veteran, nor his representative, have alleged (nor have they submitted competent evidence to show) that the Veteran's right shoulder disorder began within one year after separation from service or that he has suffered from a right shoulder disorder continuously since service. See 38 C.F.R. § 3.303(b). Consequently, service connection for a right shoulder disorder on the basis that such became manifest in service and persisted, or on a presumptive basis (as a chronic disease under 38 U.S.C. § 1112), is not warranted. As for whether the Veteran's current right shoulder disorder is otherwise related to his military service, in February 2021, the Veteran underwent a VA examination to evaluate the etiology of his right shoulder disorder. The Veteran reported that he injured his right shoulder while playing football and he received a cortisone shot. He also reported that his current symptoms included, pain, inability to lift items, and interrupted sleep. The examiner diagnosed a right shoulder strain and degenerative arthritis and rendered a negative nexus opinion. The examiner acknowledged the Veteran's reports that he injured his right shoulder when he fell off a jeep in 1966 and when playing football in 1969. The examiner explained, however, that the Veteran's medical records were silent for any right shoulder condition during or post service. The examiner also noted that the Veteran first reported right shoulder problems in November 2008, when the Veteran indicated that his right shoulder pain began two months earlier. The Board finds the VA examiner's nexus opinion to be highly probative as it is supported by the record, is based on an examination of the Veteran, and is based on a thorough review of the Veteran's claims file. Significantly, there are no probative medical opinions, or other competent evidence, to the contrary in this case. The Board acknowledges the Veteran's contention that he believes his current right shoulder disorder is related to injuries during active service when he slipped and fell off a flatbed truck in 1966 in Weeden, Germany and when he was playing football in 1969. The Veteran, however, is not competent to opine as to the etiology of his right should disorder, as this issue is medically complex, and the Veteran is not shown to have the specialized medical training and/or expertise to address the etiology of this issue. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As such, the Board affords these contentions little to no probative value and they are outweighed by the more probative February 2021 VA medical opinion above. The Board is grateful for the Veteran's honorable service. However, given the record before it, the Board finds that the evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009). Accordingly, the Veteran's claim of service connection for a right shoulder disorder is denied. REASONS FOR REMAND 1. Entitlement to service connection for a right knee disorder is remanded. In February 2021, the Veteran underwent a VA examination to evaluate the etiology of his right knee disorder. However, the Board finds that this VA examination is insufficient for rating purposes. In pertinent part, the examiner opined that the Veteran's claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. This opinion, however, was contradicted by the VA examiner's own rationale that indicated the Veteran's medical records were silent for documentation reflecting a preexisting condition prior to service. The VA examiner also opined that the Veteran's right knee condition was less likely than not incurred in or caused by a claimed in-service injury, event, or illness and explained that the Veteran's medical records were silent for evidence supportive of an in-service right knee condition. The Board observes that, while the VA examiner acknowledged the existence of the October 1975 VA treatment records showing right knee pain with injuries in 1963 and 1969, the examiner did not otherwise discuss the significance, if any, of these records. Importantly, in the November 2019 remand, the Board specifically instructed that the VA examiner both consider and discuss this evidence. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Accordingly, remand is warranted for a new VA medical opinion consistent with the directives herein. The matter is REMANDED for the following action: Obtain a VA medical opinion from an appropriate examiner to determine the nature and etiology of the Veteran's right knee disorder. The claims folder (including a copy of this remand) must be provided to and reviewed by the examiner. a) To the extent that the medical evidence suggests that the Veteran's right knee disorder existed prior to service, the examiner must determine whether there is clear and unmistakable (obvious, manifest, or undebatable) evidence that his right knee disorder preexisted his active duty service? b) If it is determined that the Veteran's right knee disorder clearly and unmistakably preexisted service, is there clear and unmistakable (obvious, manifest, or undebatable) evidence that the preexisting disorder was not aggravated beyond the natural progression of the condition? The term "aggravated" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. c) If the Veteran's right knee disorder did not clearly and unmistakably preexist service, did it at least as likely as not (50 percent probability or greater) have its onset during service or is it otherwise related to service? In rendering the above opinions, the examiner must specifically consider and discuss the Veteran's testimony that he injured his right knee in service playing football and falling into a crater (See September 2019 Board Hearing Transcript) and the October 1975 VA treatment records showing right knee pain and the Veteran's reports that he injured his right knee in 1963 and again in 1969. The examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the 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. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.