Citation Nr: 22010406 Decision Date: 02/23/22 Archive Date: 02/23/22 DOCKET NO. 15-29 621 DATE: February 23, 2022 ORDER Entitlement to service connection for a right big toe disorder is denied. Entitlement to service connection for a right shoulder disorder is denied. FINDINGS OF FACT 1. The Veteran does not have any current residuals of a right big toe injury that manifested in service or is otherwise attributable to service. 2. A right shoulder disorder did not manifest in service and is not attributable to service; arthritis did not manifest within one year of separation from active service. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of a right toe injury have not been met. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. 2. The criteria for service connection for a right shoulder disorder have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1993 to August 1997. These matters come to the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The claims were remanded in December 2019. The Veteran had a hearing before the undersigned Veterans Law Judge (VLJ) in July 2021. The hearing transcript has been associated with the record. SERVICE CONNECTION Generally, to establish service connection, a claimant must show: (1) a present disability; (2) an 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. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). For certain chronic disorders, including arthritis, service connection may be granted if the disease becomes manifest to a compensable degree within one year following separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309. Right Big Toe The Veteran submitted a claim for service connection for the right big toe disability in December 2012, claiming such was due to service. At his December 2013 VA examination, the examiner noted the Veteran's prior diagnosis of a soft tissue injury to the right big great toe in 1995. The Veteran reported pain and functional impairment of the right big toe. However, the examiner found that such injury was acute, an X-ray report of the right foot dated August 1995 showed normal findings, the separation examination in 1997 was normal without complaints related to the great toe, and that such injury would not result in a chronic toe disability. Thereafter, in January 2020 the VA examiner found the same, in particular that the Veteran's in-service toe injury was acute in nature and resolved with conservative treatment. The examiner also noted the normal August 1995 X-rays and the Veteran's separation examination was also normal with respect to the big toe. With respect to the crucial first Shedden element, the weight of the medical evidence fails to show that a right big toe disability currently exists or has existed at any time during the course of the appeal. Because the Veteran does not have a current disability, the Board finds that service connection must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). Even assuming that the Veteran had pain or functional limitation in his right great toe per Saunders, such has not been shown as etiologically related to his in-service injury. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) addressed whether pain could be a disability, Saunders did not eliminate the requirement that there be underlying acquired pathology (disease or injury). As reflected above, both the December 2013 and January 2020 VA examiners concluded that his in-service toe injury was acute and did not result in any current toe disability. The examiners considered the relevant evidence of record and provided a persuasive rationale for the conclusions reached. In this case, there is no persuasive evidence showing that any right big toe symptomatology is etiologically related to his period of service. Accordingly, the claim is denied. Right shoulder disorder The Veteran submitted a claim for service connection for a right shoulder disorder in December 2012. He contends that he has a right shoulder disorder that is related to service to include as due to injury to the right shoulder from roping. See private treatment record from Dr. John Garneau dated June 2021. The Board notes the finding in a private June 2021 report from Dr. Garneau that the Veteran has right shoulder arthritis. To the extent that the Veteran contends that his right shoulder disorder is related to service, the Board finds that the objective evidence outweighs this assertion. Crucially, the Veteran's service treatment records indicate no suggestion of treatment for or complaints of symptoms related to a right shoulder disorder. A January 1996 STR reflects that the Veteran fell on his left elbow and shoulder with full gear while on a field exercise. The assessment was left trapezius strain. Additionally, the Veteran's May 1997 separation examination revealed normal findings as to the right shoulder and the Veteran denied any right shoulder symptomatology (i.e. marked "no" regarding whether he had a painful or "trick" shoulder or elbow." Pertinently, the earliest indication of a right shoulder injury is in October 2008 when the Veteran reported to the emergency room after falling on his right shoulder. The impression was normal right shoulder radiographs. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence can have greater probative value than history as reported by the veteran). This is approximately 11 years after the Veteran's discharge from service. The Board therefore finds that the Veteran's report of a history of a right shoulder disorder since service is not persuasive and outweighed by the objective evidence of record in light of the lack of any post-service identification until 2008 as well as the service treatment records which indicate normal findings with regard to the right shoulder and the Veteran's denial of right shoulder symptoms. Therefore, to the extent that the Veteran contends that he sustained a right shoulder injury in service and his current right shoulder disorder manifested during service, this lay evidence is at odds with the remainder of the record, which reflects normal findings during service and his denial of pertinent pathology. As such, the Veteran's statements are lacking probative value. The Board acknowledges a June 2021 private treatment report from Dr. Garneau in which he opined that the Veteran's current right shoulder issues are "directly" related to injuries incurred during service. However, this opinion was based on Dr. Garneau's finding that the Veteran injured his right shoulder from a training fast-roping from a helicopter. Pertinently, as discussed above, the Board has determined that the objective evidence of record does not support a finding that the Veteran sustained such injury to his right shoulder during service. As such, the Board finds that this positive opinion is not probative. In this regard, a medical opinion based on an inaccurate factual premise is not probative. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As there is no persuasive evidence of an in-service right shoulder injury, a VA examination and opinion was not necessary. The claim is denied. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Nadia Kamal, 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.