Citation Nr: 22010381 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 15-27 374A DATE: February 23, 2022 ORDER The issue of entitlement to an increased rating for hearing loss, rated as 20 percent disabling prior to July 24, 2018, and as 30 percent disabling thereafter, is dismissed. The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to June 1, 2014, is dismissed. Entitlement to service connection for a left shoulder disability is denied. FINDINGS OF FACT 1. In November 2021, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran that he intended to withdraw his appeal as to the issues of entitlement to an increased rating for hearing loss and entitlement to a TDIU prior to June 1, 2014. 2. A left shoulder disability did not manifest in service or for many years thereafter and is not otherwise related to service. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to an increased rating for hearing loss, rated as 20 percent disabling prior to July 24, 2018, and as 30 percent disabling thereafter, by the Veteran have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2020). 2. The criteria for withdrawal of the issue of entitlement to a TDIU prior to June 1, 2014, by the Veteran have been met. 38 U.S.C. § 7105 (2012); 38 C.F.R. § 19.55 (2020). 3. The criteria for entitlement to service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1101, 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1977 to December 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office. In January 2021, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In June 2021, the Board issued a decision granting the petitions to reopen the claims for service connection for sleep apnea and a left shoulder disability; the Board also granted service connection for sleep apnea on the merits and restored a 20 percent rating for hearing loss from August 18, 2016, to July 23, 2018. The Board also remanded the matter of entitlement to service connection for headaches, entitlement to service connection for a left shoulder disability, entitlement to an increased rating for hearing loss, and entitlement to aTDIU prior to September 20, 2018, to the Agency of Original Jurisdiction (AOJ) for additional development. In an October 2021 decision, the AOJ granted service connection for headaches. As this represents a full grant of this issues previously on appeal, it is no longer before the Board. The AOJ also granted a TDIU from June 1, 2014. Withdrawn Claims 1. Entitlement to an increased rating for hearing loss, rated as 20 percent disabling prior to July 24, 2018, and as 30 percent thereafter 2. Entitlement to a TDIU prior to June 1, 2014 The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Appeal withdrawals must include the name of the veteran, the file number, and a statement that the appeal is withdrawn. Id. Withdrawal may be made by the appellant or by his or her authorized representative. Id. In a November 2021 written correspondence, prior to the promulgation of a decision in the appeal, the Veteran submitted a written statement indicating that he was satisfied with his appeal as to all remaining issues and wanted to withdraw all remaining issues on appeal, with the exception of entitlement to service connection for a left shoulder disability. The Board finds that this statement satisfies the requirements for a written withdrawal. 38 C.F.R. § 19.55; see Hembree v. Wilkie, 33 Vet. App. 1 (2020). Hence, there remain no allegations of errors of fact or law for appellate consideration on these issues. Accordingly, the Board does not have jurisdiction to review the appeal as to the issues of entitlement to increased ratings for hearing loss and entitlement to a TDIU prior to June 1, 2014, which are dismissed. Service Connection The Veteran asserts that his left shoulder disability began in service. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). However, 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 U.S.C. § 1101. With respect to the current appeal, this list includes arthritis. See 38 C.F.R. § 3.309(a). Service connection may also be granted for a disease first 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, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a), 3.309(a). However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service. See 38 C.F.R. § 3.307. 3. Entitlement to service connection for a left shoulder disability With regard to a present disability, an August 2021 VA examiner diagnosed left shoulder strain. Thus, the first service connection element is met. With regard to an in-service disease or injury, the Veteran's service treatment records include no complaint, findings, or diagnosis particularly with respect to the claimed left shoulder disability. The Veteran did endorse "painful shoulder, elbow or wrist" on October 2003 report of medical history at discharge. A history of right wrist sprain, 14 years prior, was noted in the remarks section but there was no notation with respect to the shoulder. No abnormalities of the shoulder were noted on October 2003 retirement examination. However, during the Veteran's January 2021 Board hearing, he testified that his left shoulder symptoms began in service. He recalled getting "banged up" on a steam drum on a boiler. He noted that his disability must have begun in service because for 26 years, that is the only place where he worked, and his post service employment did not involve any conditions where he hurt himself or his shoulder, but he certainly hurt his shoulder in service. He recalled having pain in his shoulder in service, but he just dealt with it without getting treatment. Given the Veteran's testimony of an injury on a steam drum on a boiler, affording the Veteran the benefit of the doubt, the second service connection element is also met. The remaining question is whether the Veteran's current left shoulder disability is related to service. Following service, VA treatment records dated as early as 2012 note complaint related to the right shoulder, but not the left. The Veteran was afforded a VA examination in December 2016, at which time the Veteran reported shoulder conditions due to service duties in including lifting/carrying, and pushing/pulling heavy loads. He had no history of any major trauma such as fractures. The examiner diagnosed right shoulder strain but did not note a diagnosis with respect to the left shoulder. A 2019 VA treatment report notes complaint of bilateral shoulder pain. On VA examination in August 2021, the Veteran reported that his left shoulder disability began in 1993 with a pinched nerve and initial symptoms of stiffness and tightness. He had not been treated for the left shoulder, and used medication, a lidocaine patch as needed as well as an electrotherapy device. After physical examination, the examiner diagnosed let shoulder strain. The examiner indicated that, after examination and review of the record, it was less likely than not that the Veteran's left shoulder strain is etiologically related to his active duty service. In so finding, the examiner noted that there were no records of treatment for the left shoulder in service. The examiner noted specific review of the Veteran's hearing testimony as to onset of symptoms, but noted that 2016 examination of the left shoulder were normal. In addition, in mild-to-moderate shoulder sprain or strain, one may be able to return to normal activities within 1 to 2 weeks. Moderate sprains or strains, required as long as 6 to 8 weeks, while severe strains may feel better after 4 to 6 weeks, but required 5 months of rehabilitations before resuming full shoulder activity. The examiner noted that the Veteran left military service in 2003 and that, based on the foregoing, there was no way the current strain was caused by injuries sustained above. In sum, the Board finds that the preponderance of the evidence is against of finding of onset of left shoulder disability in service, or that the Veteran's current left shoulder disability is otherwise related to service. There is no documentation of complaint or treatment related to the Veteran's left shoulder in service. Although he checked shoulder or wrist disability, on report of medical history at discharge, this complaint was noted to be related to the right wrist. Post-service treatment records essentially do not indicate disability of the shoulder until 2014, when the Veteran filed his claim, and do not document a diagnosis related to left shoulder until 2021. The Board notes that the passage of many years between discharge from active service and the documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and any medical complaints or documentation of a claimed disability is a factor that weighs against a claim for service connection). See 38 C.F.R. § 3.303(b). Moreover, the only pertinent medical opinion of record is that of the 2021 VA examiner, who had a thorough review of all pertinent evidence and found it less likely than not that the Veteran's left shoulder disability had its onset in service or is otherwise related to service, to include the Veteran's report of injury therein. Thus, the only credible, probative opinion of record weigh against the claim, and the Veteran has not presented or identified any medical opinion or other competent evidence that, in fact, supports his claim for service connection. Furthermore, the Veteran has not been diagnosed with arthritis, and therefore the record establishes that arthritis was not "noted" during service or within one year of separation, or that he had characteristic manifestations of the disease during service. 38 C.F.R. § 3.303(b). To the extent that the Veteran's relates his left shoulder disability to service and in-service injury, he is competent to testify to his observations. The Veteran is competent to testify as to his observations, but this testimony must be weighed against the other evidence of record. In this case, the Veteran's current recollections are not consistent with service treatment records, which do not document left shoulder injury or disability, and post-service records, which did not reflect earlier onset dating back to service. The VA examiner also reviewed these records and concluded that the disability did not likely onset in service. On the question as to whether the Veteran's left shoulder disability had its onset in service, or is otherwise related to service, the specific, reasoned opinion of the VA examiner is of greater probative weight than the more general assertions of the Veteran, even assuming the Veteran's competence to opine on this medical question. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). Accordingly, the claim for service connection for a left shoulder disability must be denied. The Board is grateful for the Veteran's honorable service, and this decision in no way is meant to detract from that service. However, for the reasons noted above, service connection is not warranted at this time. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. E. Wilkerson, 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.