Citation Nr: 21040641 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 16-41 984 DATE: July 6, 2021 ORDER Entitlement to service connection for a right shoulder disability, claimed as torn ligament, and diagnosed as rotator cuff tear and degenerative arthritis, is denied. FINDING OF FACT The competent evidence of record does not support the finding that the Veteran's current right shoulder disability manifested during service, manifested to a compensable degree within 1 year after service, or is otherwise causally or etiologically related to her active duty service. CONCLUSION OF LAW The criteria for service connection for a right shoulder condition disability are not met. 38 U.S.C. §§ 1101, 1110, 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 July 1987 to August 1988. This matter comes before the Board of Veteran's Appeals (Board) from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in April 2018 when the claim was remanded for development. The Board finds the April 2018 remand directives have been substantially complied with, and the matter is again before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes the Veteran had been represented by a private attorney in the instant appeal. However, in correspondence received by VA in March 2020, her private attorney withdrew his representation. In May 2021, VA informed the Veteran of her pro se status and provided her opportunity to submit a new power of attorney if she wished to appoint a new representative. This letter also advised the Veteran that if she did not respond within 30 days, that the Board would continue adjudication of the claim and would consider her a pro se Veteran. The 30 days have elapsed, and no response has been received from the Veteran. As such, the Board finds that the Veteran is a pro se Veteran in the instant appeal and VA's duty to read pro se filings liberally applies. Moody v. Principi, 360 F.3d 1306, 1310 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). The Board has recharacterized the issue on appeal, as it appears on the title page of this decision, to better reflect the evidence of record. See Clemons v. Shinseki, 23 Vet. App. 1, 5-6 (2009). Entitlement to service connection for a right shoulder disability The Veteran seeks service connection for a right shoulder disability, claimed as torn ligament. Generally, service connection may be established for a disability resulting from disease or injury in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303 (a). To establish service connection for a disability, there must be (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 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). Additionally, certain conditions, such as arthritis, will be presumed to have been incurred in service if manifested to a compensable degree within 1 year after service. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be established under 38 C.F.R. § 3.303 (b) by evidence of (a) a chronic disease shown as such in service (or within an applicable presumptive period under 38 C.F.R. § 3.307 ) which requires (i) a sufficient combination of manifestations for disease identification, and (ii) sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic" and (iii) subsequent manifestations of the same chronic disease, or (b) if chronicity in service in not established, as above, by evidence of continuity of symptomatology which requires that (i) a condition was 'noted' during service, and (ii) evidence of post-service continuity of the same symptomatology, and (iii) medical or lay evidence of a nexus between the present disability and the post-service symptomatology." See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The provisions of 38 C.F.R. § 3.303 (b) relating to continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the medical condition, i.e., when its symptoms are capable of lay observation and it may be diagnosed by its unique and readily identifiable features; 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). Although a lay person is competent in certain situations to provide a diagnosis of a simple condition, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Generally, the absence of evidence of contemporaneous complaints or treatment for relevant symptoms and disability does not, by itself, constitute substantive negative evidence to be weighed against a claim. VA may rely on an absence of an entry in a record as evidence that the event did not occur, but only if the matter is of the kind that ordinarily would have been recorded in that record. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) ("When assessing a claim, the Board may not consider the absence of evidence as substantive negative evidence."). However, the Federal Circuit held that "'evidence of a prolonged period without medical complaint can be considered' in making a service connection determination." Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009) (in which the Federal Circuit affirmed a Board decision that "the preponderance of the evidence" was against a service connection claim taking into account the lack of treatment or complaints of the condition for an extensive period of time); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 305 (2008). Moreover, consideration may also be given to the earliest medical records stating when symptoms began or when treatment for symptom first began, or both. Reasonable doubt will be favorably resolved, and it exists when there is an approximate balance of positive and negative evidence. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). The Veteran's service treatment records (STRs) and post-service medical records, to include a VA examination, have been associated with the claims file. Pursuant to the Board's April 2018 remand directives, the Veteran was administered a Shoulder and Arm Conditions Disability Benefits Questionnaire (Shoulder DBQ). In this examination diagnoses of rotator cuff tear, on the right shoulder, as well as degenerative arthritis, were noted. See Shoulder DBQ of August 2019. As the Veteran has current diagnosis, her claim surpasses the first prong of the Shedden service connection test. Now, the questions that remain before the Board are whether there was an in-service incurrence and whether medical evidence links the Veteran's current condition to such incurrence. At the Shoulder DBQ, the Veteran reported that she had torn a ligament in her right shoulder while driving a cargo truck in 1989. She explained she turned her body to the right to shift gear and had pain in the back of her shoulder. She explained she went to sick call and was treated with pain medication. She also asserted that she re-injured her right shoulder in a car accident 3 years prior to the Shoulder DBQ examination. See medical history on the Shoulder DBQ of August 2019. The Board notes the Veteran separated from active duty service in 1988 and not 1989. The Veteran's STRs available in the claims file are silent as to any complaint or report of right shoulder pain or injury. Additionally, the report of medical history and the report of medical examination, dated April 1988, contain no notes, observations, or complaints, as to the Veteran's right shoulder. See STRs. The Veteran's post-service medical records show that she reported a history of "right shoulder torn ligament" in an initial assessment for physical therapy for pain in her wrists in 2007. See medical records for August 2007. However, no additional information pertaining to this subjective history of "right shoulder torn ligament" was noted in the medical record, to include the injury that caused the condition. In March 2011, the Veteran reported some discomfort when moving her right shoulder, following a fall she sustained while getting out of a car. She explained that she did not go to the emergency room for her symptoms because she was in El Paso helping a friend when it happened. She also reported hearing some popping noises coming from her shoulder with movement. See medical records for March 2011. In May 2011, the Veteran reported right arm and shoulder pain with numbness. She also reported having a history of a torn ligament to the shoulder area and requested an MRI. See medical records for May 2011. No additional information pertaining to this subjective history of "right shoulder torn ligament" was noted in the medical record, to include the injury that caused the condition. In July 2011, the Veteran complained of right shoulder numbness and dropping things, with an onset of 2 months prior to the visit. Decreased range of motion of her right shoulder was noted. An MRI of her C-Spine was ordered which revealed decreased height and mild bulges in her C-spine. A diagnosis of degenerative disc disease with radiculopathy was rendered and physical therapy was recommended. See medical records for July 2011. In August 2011, the Veteran reported pain involving her shoulder region. She reported the date her symptoms started as April 2011. The Veteran also reported popping and creaking in her right shoulder and neck with movement and being unable to reach overhead due to the popping and pain. See medical records for April 2011. In September 2012 the Veteran reported swelling on her right shoulder. She was diagnosed with degenerative right acromioclavicular joint following an x-ray that revealed narrowing and splaying at the acromioclavicular joint. See medical records for September 2012. In December 2013, the Veteran reported pain in her right shoulder. She noted having been in a vehicle accident in November 2013 and that she was having difficulty raising her right arm. See medical records for December 2013. In November 2014, the Veteran was seen for right shoulder pain. The initial trauma was noted as 2 years prior to the visit, when the Veteran was playing with her grandchildren. The Veteran also reported that when she was in the military driving a big rig, turning shifting, caused strained ligaments in her right shoulder. See medical records for November 2014. This is the first instance in the available medical records in the claims file where the Veteran reported to her medical providers an in-service incurrence pertaining to her right shoulder. In August 2019, a medical opinion was associated with the claims file following the above-mentioned Shoulder DBQ. The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury. In favor of this opinion the examiner noted the mechanism of the injury while in service as reported by the Veteran, having reviewed the available medical records and included pertinent findings such as the earliest mention of a shoulder condition in the Veteran's medical records dated to the year 2011. Based on this, the examiner determined that a nexus between the torn ligament in the right shoulder, or rotator cuff tear, and the Veteran's military service had not been established and was not supported by the objective medical evidence. He also noted that widely accepted peer reviewed medical literature indicated the cause of a rotator cuff tear is likely multifactorial, and that degeneration, impingement, and overload may all contribute in varying degrees to the development of rotator cuff tears and that rotator cuff tears are primarily a disease of middle aged and older patients. See medical opinion, dated August 2019. The Board finds this medical opinion adequate as the examiner considered the evidence of record and supported his conclusion with a rationale. Thus, the Board assigns it high probative value. Based on the above, the Board finds that service connection for a right shoulder disability is not warranted. Here, although the Veteran's claim surpasses the first prong of the Shedden service-connection test of a current diagnosis or disability, the claim does not surpass the second and third prongs of the test. Notably, although the Veteran reports having injured her shoulder while driving a military vehicle and having received treatment in sick call for it; her STRs do not note any complaint, injury or symptom pertaining to her right shoulder; to include a diagnosis of "torn ligament" or "rotator cuff injury" during service. A visit to sick call for shoulder pain, treatment with medication, as well as a diagnosis or finding of "torn ligament" "strained ligament" or "rotator cuff injury" by a medical professional, are the kind of events that ordinarily would have been recorded in the Veteran's STRs. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Moreover, while the Veteran is competent to report having felt pain in her shoulder during service, she is not competent to diagnose such pain as consistent with a diagnosis of "torn ligament" or "rotator cuff injury" which requires medical expertise. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Thus, based on the preceding, the Board is unable to find that the second prong of the Shedden service-connection test, the in-service incurrence, has been surpassed in the present appeal. Here, the preponderance of the evidence is against the finding of an in-service incurrence as the STRs are devoid of a diagnosis or treatment for a right shoulder complaint and there is no competent evidence of record supporting a diagnosis of a right shoulder disability during service. Moreover, post-service medical records pertaining to the Veteran's right shoulder complaints do not show the Veteran reported an in-service injury until the year 2014; although she had been receiving sporadic treatment for right shoulder pain since the year 2011 following a fall. These findings weigh heavily against the Veteran's lay assertion of having suffered a torn ligament in her right shoulder while in service and also weigh heavily against the credibility of her lay statements. Furthermore, the claim does not surpass the third prong of the Shedden service connection test, the nexus requirement, as the medical evidence of record does not link her current disability to her service. Pertinently, medical records show that the Veteran's arthritis, to include that in her right shoulder, has been attributed to the aging process. See medical records for September 2017. Additionally, the medical opinion of August 2019 determined that the Veteran's present disability is less likely than not related to her service and instead noted that the condition of torn ligament, or rotator cuff injury, is primarily a disease of middle aged and older patients due to contributing factors such as degeneration, impingement and overload. Moreover, there is no other competent evidence or adequate medical opinion of record to contradict this conclusion. Thus, as the Veteran's claim fails to surpass the second and third prongs of the Shedden service connection test, the Board finds that service connection for right shoulder disability, to include arthritis and a torn ligament or a rotator cuff injury, is not warranted. In reaching this conclusion, the Board has considered the Veteran's competent lay statements as to pain in her right shoulder during service. However, in the present case, the available records do not support the finding that the Veteran suffered a right shoulder injury while in service or that she was diagnosed with any condition pertaining to her right shoulder in service. The Board has also considered the benefit of the doubt doctrine but finds that this doctrine is inapplicable in the present case as the evidence of record preponderates against the claim. The Board has also considered the presumptions established in 38 C.F.R. §§ 3.307 and 3.309, for service connection of chronic diseases. However, the record does not support the finding that the Veteran's shoulder disability was diagnosed or noted in service or otherwise manifested to a compensable degree within one year of her separation from active duty service. Furthermore, the Veteran has not asserted, nor does the record support the finding, that she has continuously suffered from shoulder pain since service. Notably, the earliest note of symptomatology consistent with a shoulder condition dates back to the year 2011 and the earliest note of ligament issues pertaining to her right shoulder dates back to the year 2007- without further description or supporting explanation other than the Veteran's subjective report. These findings support the conclusion that the Veteran's disability first manifested decades after her separation from service. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 305 (2008). Thus, the Board finds that presumptive service connection for the Veteran's right shoulder arthritis, a chronic disease, is not warranted. 38 C.F.R. §§ 3.307, 3.309. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Gonzalez-Maldonado 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.