Citation Nr: 22008149 Decision Date: 02/11/22 Archive Date: 02/11/22 DOCKET NO. 10-21 680 DATE: February 11, 2022 ORDER Entitlement to service connection for right shoulder degenerative joint disease (DJD) is denied. FINDING OF FACT The most probative evidence of record establishes the Veteran's right shoulder DJD was not chronic in service or within one year of discharge, and there is no medical nexus between the Veteran's right shoulder DJD and active service. CONCLUSION OF LAW The criteria for entitlement to service connection for right shoulder degenerative joint disease have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38C.F.R. §§3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1973 to February 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The issue on appeal was most recently denied by the Board in November 2020. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court) which, in a September 2021 Joint Motion for Remand (JMR), vacated the Board's October 2019 decision that denied entitlement to service connection for right shoulder DJD, and remanded the claim for readjudication. It was determined that the Board did not allow the Veteran fair process by issuing the October 2019 decision before addressing a request to hold the record open for 90 days. Subsequent to the September 2021 JMR, the Veteran's attorney has presented additional argument. With all procedural issues and due process concerns resolved, the case has been properly returned to the Board for appellate review. Service Connection 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. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) competent evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For the showing of a chronic disease in service, there must be a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time of service. If chronicity in service is not established, evidence of continuity of symptoms after discharge is required to support the claim. 38C.F.R. §3.303(b). However, the use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38C.F.R. §3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38C.F.R. §3.303(d). Lay statements may serve to support a service connection claim by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38U.S.C. §1153(a); 38C.F.R. §3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person. Kahana v. Shinseki, 24 Vet. App. 428 (2011). After considering all information including the lay and medical evidence of record in a case with respect to benefits under laws administered by the Secretary, when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be given to the claimant. 38U.S.C. §5107(b); 38C.F.R. §3.102. The benefit of the doubt rule is inapplicable when the evidence preponderates against the claim. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Entitlement to service connection for right shoulder degenerative joint disease (DJD) The Veteran contends that he has a current diagnosis of right shoulder DJD due to an in-service injury. Specifically, the Veteran claims that he endured hard landings from his documented parachute jumps while in service. The Veteran reports continuous problems with his right shoulder since active duty and that this resulted in right shoulder replacement surgery in October 2006. See March 2009 VA Form 21-526; April 2009 VA Form 21-4138. The Veteran has been diagnosed with right shoulder osteoarthritis. The first element of entitlement to service connection (a current disability) has been met. As to an in-service incurrence of a disease or injury, it has been conceded that the Veteran likely had an in-service right shoulder injury and symptoms given his infantry training and military occupational specialty (MOS). The Veteran has verified parachute training per his DD-214. Therefore, the second element of service connection, incurrence of an in-service injury, has been satisfied. The third element to entitlement to service connection, a medical nexus, must be resolved. The Veteran was afforded a VA examination to provide a nexus opinion between the claimed in-service injury and the Veteran's current right shoulder condition. For the reasons below, the weight of the evidence is against a finding of a medical nexus between the Veteran's right shoulder DJD and active service. The most probative evidence of record is against a finding that the Veteran reported a continuity of right shoulder symptoms since active service. A February 1975 separation examination report notes a normal clinical evaluation of the upper extremities, and is silent for complaints or findings related to a right shoulder disability. Post-service medical records include the July 1996 treatment record noting muscles spasms of the right deltoid with no anatomical deformity; a December 1997 treatment record showing a history of right shoulder bursitis with no mark of inflammation, gross deformities, or limitations to range of motion; the June 2006 VA treatment record of orthopedic surgery consult based on chronic shoulder pain since 1995 with prior treatment of injections and severe osteoarthritis noted on x-rays; and the November 2006 VA treatment note following shoulder replacement surgery. The VA medical opinions of January 2016 and December 2018 regarding service connection were substantially, if not wholly, based upon the twenty-year gap in the Veteran's available post-service treatment records. The absence of post-service complaints or diagnosis is one factor that tends to weigh against a finding of continuous or recurrent symptoms of the claimed disability after service separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). As such, the Board affords the January 2016 and December 2018 VHA opinions little probative value. The Board acknowledges the Veteran's contention that despite his shoulder being sore throughout jump school he did not, "complain about pain or minor injuries because [he] didn't want to get recycle[d]." See April 2009 VA Form 21-4138. However, the Board notes that the Veteran's service treatment records (STRs) contain complaints and treatment for a variety of injuries sustained in service, including left hand (October 1973); left wrist and forearm pain (November 1973); mild back strain (April 1974); left thumb sprain (September 1974); lower back strain (January 1975); and left knee swelling (February 1975). As the record contradicts the Veteran's contentions, his lay statements in this regard are afforded little probative value. The Board further notes that when the Veteran sought treatment from VA in May 2006 and October 2006 regarding his chronic right shoulder pain, he indicated it had an onset date of 1995, which is approximately two decades after his separation from service. The Board finds this statement to the Veteran's treatment provider to be probative evidence, as statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy. As noted in Rucker v. Brown, 10 Vet. App. 67 (1997), declarants have a strong motive to tell the truth in order to receive proper care. Id.at 73. An additional VA nexus opinion was obtained in September 2020. The examiner opined that the Veteran's right shoulder disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The rationale was that the examiner was unable to substantiate a significant injury to the Veteran's shoulder while in service that would lead to the development of severe arthritis in his shoulder decades later. The examiner acknowledged the conceded in-service injury, as evidenced by right shoulder pain due to landing on his side in service as part of airborne landings. The examiner noted this is reasonable, but explained that hard airborne landings on the shoulder would not be typically expected to lead to severe shoulder arthritis in the future. The examiner noted that there was no evidence in the available x-rays of any post-traumatic deformity which would have conceivably led to post-traumatic arthritis in the shoulder. It was further explained that there was no documentation in the available records of ongoing care of the shoulder for a more severe injury while in service (such as a shoulder dislocation) which could also conceivably lead to post-traumatic arthritis due to a labral injury. The examiner addressed the Veteran's shoulder bursitis, which was noted in the VA records in the 1990s. The examiner explained that a bursitis diagnosis was common in middle aged individuals, particularly in the setting of repetitive overhead use and lifting with the shoulder, and that this does not lead to arthritis of the shoulder. The examiner explained this was often on the continuum of rotator cuff disease and that the Veteran's bursitis would not be expected to be connected to the Veteran's military service. See September 2020 VA examination. The Veteran's attorney argued that the September 2020 VA medical opinion is inadequate. The reasoning for this, he contends, is because the opinion was based on the examiner attempting to substantiate an injury through documentation in records. It was further argued that the examiner assumed the Veteran did not suffer an in-service injury, which was already an established fact. See November 2021 Appellate Brief. The Board finds that the September 2020 VA medical opinion against the possibility of service connection is highly probative evidence versus the contention that the Veteran's current right shoulder disability is related to his military service. The Veteran's attorney quoted the examiner, "Based on the available medical documentation, I am unable to substantiate a significant injury to the Veteran's shoulder." It was argued that the examiner's opinion should be rendered inadequate because the Board has conceded the occurrence of an in-service right shoulder injury. This sentence fragment, as argued by the attorney, is a mischaracterization of the examiner's full statement. The examiner stated that they could not substantiate a significant injury that would lead to the development of arthritis decades later. This does not state that no injury occurred. In fact, the examiner acknowledged the airborne landings. It was concluded that this type of injury would not be the type that eventually leads to severe arthritis. The examiner even gave an example of a specific injury that could lead to severe arthritis decades later (shoulder dislocation). The examiner did not state that an injury had to have been documented in order for an injury to have occurred. Rather, the examiner stated that the type of injury that occurred was not of a severe enough nature to cause the Veteran's current disability. This negative nexus opinion is adequate for adjudication purposes, and is probative evidence that weighs against the claim. Moreover, the Board assigns more weight to the contemporaneous service treatment records which are negative for right shoulder symptoms related to service over statements made decades after the fact in conjunction with a claim for VA compensation benefits. The histories as reported by the Veteran do not identify service-related causes for his right shoulder DJD symptoms. While the Board acknowledges the Veteran's contention that he suffered soreness and pain off and on "throughout [his] life," the most probative evidence of record supports a finding that the current right shoulder disability (advanced osteoarthritis which required a right shoulder hemiarthroplasty) is not related to service. No arthritis or a significant injury to the shoulder was noted in service, or for many years thereafter. A right shoulder injury/pain was conceded to have occurred in service, but no continuing shoulder complaints were noted at the Veteran's separation examination. Finally, the September 2020 VA examiner provided a well-reasoned opinion that the Veteran's current right shoulder disability was unrelated to his active service, to include a history of landing on the right shoulder during airborne landings. Although the Veteran contends his right shoulder disability is related to his active service, he is not competent to provide a nexus opinion regarding this issue. It is medically complex and outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). A nexus between an internal disease and any incident during service is not capable of lay observation, and requires medical training, expertise, or credentials. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012). Consequently, the Board gives more probative weight to the September 2020 VA medical opinion. (Continued on the next page) After reviewing the evidence of record, the Board finds that the more probative evidence states that the Veteran's current right shoulder disability was not caused by or incurred during active duty service. There is no competent evidence that the current right shoulder disability began during service and persisted since service or manifested to a compensable degree within one year of separation from service. Furthermore, there is no competent evidence in the record of a nexus between the claimed condition and military service. For these reasons, the claim must be denied. 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. Nykeia F. Miller Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Nelson, 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.