Citation Nr: 22065521 Decision Date: 11/23/22 Archive Date: 11/23/22 DOCKET NO. 19-03 550 DATE: November 23, 2022 ORDER Entitlement to service connection for a right shoulder disorder is denied. FINDING OF FACT The evidence persuasively weighs against finding that a right shoulder disorder, to include strain and tenosynovitis, began during active service or within one year of service, or is otherwise related to an in-service injury, event, or disease. CONCLUSION OF LAW The criteria for service connection for a right shoulder disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from June 2005 to June 2013. This issue was denied by the Board in a September 2019 decision. The Veteran appealed this decision to The United States Court of Appeals for Veterans Claims (Court). In a June 2020 joint motion for partial remand (JMPR), the Court vacated the September 2019 decision in relation to the issue of entitlement to service connection for a right shoulder disorder and remanded the issue for further development. The Board acknowledges that the Veteran requested Board hearings before a Veterans Law Judge in December 2020 and August 2021 correspondence. However, the Veteran, through his representative, withdrew the requests in writing in April 2021 and March 2022. As such, the prior hearing requests are considered withdrawn. 38 C.F.R. § 20.704. The Board remanded this issue in September 2020, May 2021, and June 2022 for further development. The issue has since returned to the Board for appellate review. Entitlement to service connection for a right shoulder disorder is denied. The Veteran asserts that he is entitled to service connection for a right shoulder disorder on a direct basis. However, as outlined below, the evidence persuasively weighs against finding that the Veteran's right shoulder disorder manifested during, within the year following, or as a result of active service. As such, service connection cannot be established on a direct basis. 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, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). 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). Review of the Veteran's service treatment records (STRs) reflect that in the August 2005 examination, the medical provider observed the upper extremities to be normal. On the September 2006 STR report of medical history, the Veteran indicated that he does not experience shoulder pain. On the October 2011 STR report of medical history, the Veteran indicated that he does not experience shoulder pain. On the May 2013 STR report of medical history, the Veteran indicated that he experienced recurrent back pain and numbness or tingling. The Veteran indicated that he did not experience shoulder pain. The Veteran stated that he has recently been waking up with neck pain and numbness in the arm or leg. He stated his back appears to be twisted. On the May 2013 STR separation examination, the Veteran reported that he had a history of mid back pain with occasional shooting into the right arm. The Veteran stated he controls the pain with over-the-counter medication. The medical provider noted that the Veteran has intermittent back pain that he treats conservatively and does not limit his activities. The medical provider also stated that the Veteran has occasional numbness into the right arm. In a November 2014 VA treatment record, the Veteran reported back pain that starts in the thoracic and lumbar region with radiating pain to the right arm at times. The Veteran stated that in 2006 he almost fell from a ladder and caught himself with the right arm. In a November 2014 VA treatment record, the medical provider stated the radiology results for the back and shoulder are normal. On the October 2020 VA shoulder examination, the examiner indicated the Veteran has a diagnosis of tenosynovitis. The Veteran stated that his shoulder disorder began in 2006 when he was falling off of a ladder and caught himself with the right arm on the ladder. The Veteran stated he has experienced shoulder symptoms since this time. The Veteran stated he currently experiences a constant ache in the right shoulder with intermittent stiffness. The Veteran stated that weather changes aggravate the shoulder. He stated that he hears cracking/popping in the shoulder. He stated he also experiences tingling in the right arm. He stated he has decreased range of motion in the right shoulder. The October 2020 VA examiner opined that the Veteran's right shoulder disorder is less likely than not caused by service. The examiner reasoned that during service, the Veteran's right shoulder injury was acute only. The examiner stated that there is no evidence of chronicity of care and symptoms are subjective only. The examiner concluded that a nexus has not been established for the Veteran's tenosynovitis, however, it cannot be determined that this was chronic and as a result of a service injury. On the June 2021 VA shoulder examination, the examiner indicated the Veteran has a diagnosis of right shoulder strain. The Veteran stated that in 2010 he was falling from a ladder and grabbed onto the rail and strained his right shoulder. He stated that he has intermittent spasms in the right lateral trapezius region since the injury. The June 2021 VA examiner opined that right shoulder disorder is less likely than not caused by service. The examiner stated that the numbness described as radiating from the back into the arm is not evidence of shoulder tenosynovitis. The examiner reasoned that tenosynovitis/shoulder strain does not cause numbness from the back with radiation to the right arm. The examiner stated this is a sign of potential radicular pain. The examiner explained that tenosynovitis symptoms do not produce neurological symptoms, such as paresthesias or numbness. The examiner stated that tenosynovitis presents as pain along the insertion point of the tendon involved and this was not present on this examination. The examiner concluded that the Veteran has a general right shoulder strain isolated to the right lateral trapezius muscle region. The June 2021 VA examiner also stated that based on the evidence, the Veteran's tenosynovitis/shoulder strain was not present in service and is unlikely to have been a result from service as the Veteran indicated on several occasions he had no chronic shoulder pain history in numerous records, including the years following this injury (around 2010/2011). The examiner stated there is no treatment within a year of separation, and for years after separation from service, for a right shoulder pathology. In so finding, the examiner observed that the May 2013 separation examination did not note chronic right shoulder pathology, the October 2011 physical noted no shoulder issues but only documented back spasms, and the May 2013 separation physical noted no specific shoulder issues. In conclusion, the examiner finds that the diagnosed right shoulder strain is less likely than not caused by service. On the July 2022 VA shoulder examination, the examiner indicated the Veteran has diagnoses of right shoulder strain and right shoulder tenosynovitis. The Veteran stated that he was on deployment in 2010 and was working on a ladder when he started to fall and reached out to catch himself with his right arm. He stated that he developed low back spasms and was treated. He stated he did not have any pain in the shoulder at the time of the incident. The Veteran stated the treatment provider examined his back, neck, arms, and shoulders. He stated he began to have right shoulder discomfort when he moved duty stations. He stated that this discomfort has occurred intermittently until 2013. The Veteran stated that after separation from service he underwent imaging with VA in 2013. He recalled that the findings of the imaging were negative, and he did not need further treatment. He stated his back was causing the most symptoms. He stated that a medical provider told him around 2019 that his shoulder was the cause of his back pain. He stated he did not have any new injuries to the right shoulder after his injury from service. He stated that currently the right shoulder pain is intermittent. The July 2022 VA examiner opined that the Veteran's right shoulder disorder, to include right shoulder strain and right shoulder tenosynovitis, is less likely than not caused by service. The examiner reasoned that during service, the Veteran's shoulder strain was acute only. The examiner acknowledges that VA conceded that the Veteran had an accident involving a ladder during service. The examiner reasoned, however, that the Veteran was not treated for any shoulder injury during service, including following the in-service incident involving the ladder. The examiner noted the Veteran was provided imaging by VA for the right shoulder, which revealed the shoulder was normal after service and the Veteran had no ongoing medical care for the shoulder. The examiner stated the Veteran has never had any advanced imaging of the shoulder nor has he had any treatment such as injections or physical therapy. The examiner stated that the Veteran's right shoulder examination was grossly abnormal, but the Veteran is able to perform all functions of his employment as a field engineer. The examiner stated there is no evidence of chronicity of care and a nexus has not been established. Based on the foregoing, the Board finds that there is no evidence that the Veteran's right shoulder disorder was manifested in service or to a compensable degree in the first year following his separation from service. Although the Veteran reported symptoms during service and within one year of separation from service, the STRs do not show any chronic symptoms and the medical evidence does not show any continuous symptoms since that time. See 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. Notably, the Veteran has not submitted competent evidence to show that he has suffered from the right shoulder disorder continuously since service. See 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). There is also no evidence that the Veteran's right shoulder disorder is otherwise related to service, to include his acknowledged in-service incident involving a near fall from a ladder. The Veteran's post-service treatment records are completely silent for an opinion relating his right shoulder disorder to service. The only competent evidence in the record that addresses this question are the June 2021 and July 2022 VA medical opinions, which both specifically stated that the Veteran's right shoulder disorder, to include strain and tenosynovitis, was not related to his service, specifically to include the incident involving the ladder. As there is no other evidence to the contrary, and the June 2021 and July 2022 VA medical opinions were based on a full review of the record as well as an interview and examination of the Veteran, the Board finds them persuasive. The Board finds the October 2020 VA medical opinion to be inadequate as the examiner did not address the Veteran's assertions of an in-service injury or the post-service complaint of shoulder pain within one year of separation from service. Therefore, the medical opinion is not probative or persuasive. Further, the Veteran's own statements relating his right shoulder disorder to service are not competent evidence, as he is a layperson and lacks the training to provide adequate opinion regarding medical etiology. Specifically, the Veteran lacks the training to opine whether strain and tenosynovitis, in the absence of credible evidence of continuity, as here, is related to an incident in service. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (Whether lay evidence is competent and sufficient in a particular case is a fact issue to be addressed by the Board rather than a legal issue to be addressed by the Veterans Court). Also, strain and tenosynovitis are diseases of the musculoskeletal system, and the record does not show that the Veteran has training or education in this medical field; therefore, lay evidence of the etiology of his claimed disability is not competent nexus evidence as it is not capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Layno v. Brown, 6 Vet. App. 465, 469-70. Thus, the Board finds that the Veteran is not competent or qualified, as a layperson, to render an opinion on medical causation. In light of the foregoing, the Board concludes that the evidence persuasively weighs against the Veteran's claim of entitlement to service connection for a right shoulder disorder. There is no doubt to be resolved. Accordingly, the claim must be denied. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Thompson, 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.