Citation Nr: 22010693 Decision Date: 02/24/22 Archive Date: 02/24/22 DOCKET NO. 17-02 831 DATE: February 24, 2022 ORDER Entitlement to service connection for left shoulder disability is denied. FINDING OF FACT The Veteran's preexisting left shoulder disability, which was noted at service entrance, did not increase in severity during active duty beyond its natural progression. CONCLUSION OF LAW The criteria for entitlement to service connection for left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1111, 1113, 1153, 1154; 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.306. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Marine Corps from March 1968 to November 1970. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a November 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In February 2021, the Veteran presented testimony in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims folder. In April 2021, the Board remanded the issue on appeal for additional development, and the case has since been returned for further appellate review. A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Board's remand directed the RO to obtain outstanding private or VA treatment records and to provide the Veteran with an in-person examination to determine the nature and etiology of his shoulder disability. An in-person examination was provided in August 2021, and an addendum opinion was submitted in September 2021. As discussed below, the VA opinions are adequate to adjudicate the claim, therefore, substantial compliance with the Board's April 2021 remand was achieved. Stegall, 11 Vet. App. at 271. Service Connection 1. Entitlement to service connection for left shoulder disability The Veteran contends he is entitled to service connection for a left shoulder condition incurred during military service. The Veteran asserts his shoulder separated twice during active duty; the first injury occurred during bootcamp and again while serving in Vietnam. At his February 2021 hearing, the Veteran testified that his pain began in service and has progressively worsened such that he can no longer raise his arm above his head. Transcript, 2/23/2021, pg. 2 of 8. He indicated that, although he played football and basketball prior to service, he was not aware he had arthritis in the shoulder as he did not have pain or difficulties prior to bootcamp. Transcript, pg. 4 of 8. He believes his shoulder was aggravated by active duty due to his MOS as a radio telegraph operator which required carrying heavy field gear and large radio equipment on a regular basis. He also indicated the rigors of combat activity while serving in Vietnam may have placed a strain on his injuries. VA law provides that a veteran is presumed to be in sound condition, except for defects, infirmities or disorders noted when examined, accepted, and enrolled for service. 38 U.S.C. §§ 1111, 1132. The standard for rebutting the presumption of soundness requires that VA show by clear and unmistakable evidence that (1) the veteran's disability existed prior to service, and (2) that the preexisting disability was not aggravated by service beyond its natural progression. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). Service treatment record (STR) indicate, on his March 1968 Report of Medical History upon entry into service, the Veteran reported his left shoulder separated in 1966, which was treated with tape and a sling, but that he had no residuals or recurrence since. STR, 3/16/2014, pg. 24 of 35. Additionally, the Veteran marked that he experienced painful or swollen joints, although the report does not specify the precise joints. A follow-up exam was scheduled in April 1968, to include diagnostic imaging of the shoulder. At this time, the Veteran reported he sustained multiple dislocations of the left shoulder prior to service. X-ray imaging revealed a "marked amount of irregularity and bony spurring about the distal clavicle" and "circumscribed area of calcification" at the coraco-clavicular ligaments. STR at pg. 14 of 35. The clinician concluded the imaging suggested multiple traumatic injuries with post-traumatic arthritic changes to the left shoulder. Thus, the Veteran's preexisting shoulder disability was noted at entry. As it is established that the Veteran had a preexisting condition, the presumption of aggravation is triggered. Under the presumption, a preexisting injury is considered to have been aggravated by service if an increase in the disability is shown during service. 38 U.S.C. § 1153. An opinion was provided in August 2021 with an addendum opinion submitted in September 2021. The Veteran reported he experienced a dislocated left shoulder on two separate occasions during service, specifically during combat. Of note, the Veteran's STR does not contain treatment records during his period of service in Vietnam or other pertinent records between 1968 and 1970, and therefore there is no objective evidence of his in-service injuries. However, the Veteran is competent to testify as to his in-service injuries, and VA regulation and federal courts have made it clear that "special considerations attend the cases of combat veterans." Jensen v. Brown, 19 F.3d 1413, 1416 (Fed. Cir. 1994). The burden falls to the Veteran to prove that the preexisting disability underwent an increase in severity during service for the presumption of aggravation to attach. To assist the veteran in satisfying the burden of showing aggravation, the methods of proof are liberalized. Id. at 1417. The Veteran testified that he did not have left shoulder pain prior to service, despite any previous injury sustained playing high school sports. He reported he first noticed shoulder pain at the end of bootcamp, with a second injury or dislocation occurring during his service in Vietnam. Transcript, 2/23/2021. He asserts his combat experience was physically strenuous as his MOS as a radio telegraph operator required him to carry heavy equipment. The Veteran testified to working with a forward observer in the field while carrying a 25 radio and combat gear, indicating heavy and often bulky loads. He has also submitted statements noting combat with the enemy and engagement in rapid fire missions. See Statement, 8/15/2014. Additionally, the Veteran's daughter stated she has witnessed her father's physical limitations over the years and attributes them to his combat service. Buddy, 12/12/2011. The Board finds the Veteran competent and credible to testify to his in-service injury as the shoulder dislocation is an injury the Veteran previously experienced and observable symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Further, the Veteran's report of in-service shoulder injuries are consistent with the characterization of his service period, MOS duties, and combat experience. Any doubt on the issue is resolved in the Veteran's favor. As such, the in-service shoulder dislocations are established. If aggravation of the injury occurred during service, VA carries the burden of proof in establishing that the worsening of the disability is instead due to the natural progression of the preexisting condition. See Wagner, 370 F.3d at 1096. The clear and unmistakable evidence standard here is an "onerous" one. Laposky v. Brown, 4 Vet. App. 331, 334 (1993). It requires evidence that cannot be misinterpreted and misunderstood. Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009). Following the Board's remand, an August 2021 in-person examination was conducted. The examiner provided a nexus opinion on a direct causation theory of entitlement but failed to provide an opinion as to aggravation. The AOJ requested an addendum opinion, and one was provided in September 2021. The AOJ denied the claim for service connection based on the conclusions reached in both medical opinions. The August 2021 examination report indicates the Veteran demonstrated normal range of motion (ROM) in the shoulder and an undamaged joint with no residuals of recurrent dislocation. The examiner noted he did not experience flare-ups, functional loss, muscle atrophy, or nonunion, fibrous union, or loss of the humerus head. The report notes the Veteran was not found to have a rotator cuff, AC joint, clavicle, or scapula condition. The September 2021 examiner's addendum opinion concludes that while the Veteran had a preservice left shoulder injury, "there is no evidence to suggest this condition was permanently aggravated beyond its natural progression by military service." She notes that review of the record did not produce clear and unmistakable evidence the Veteran's in-service dislocations were beyond the natural progression of his preexisting condition, but instead that the Veteran's "left shoulder symptoms and findings are completely consistent with the course of natural progression of his condition." She reasons the physiological risk of shoulder dislocations after an initial dislocation is significantly increased and, therefore, a natural consequence of the preexisting injury. The Board finds the cumulative evidence and opinions offered by the VA examiners to be persuasive and dispositive on the issue. Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened." Hunt v. Derwinski, 1 Vet. App. 292, 297 (1992). The examiner opines that subsequent shoulder dislocations are the natural progression a previous shoulder dislocation, indicating the Veteran's in-service left shoulder dislocations are akin to intermittent flare-ups of his pre-service injury. She notes a lack of symptoms or findings to suggest the condition was aggravated beyond this natural progression. As the examiners indicated reviewed the claims file and supported his opinion with medical rationale and adhered to the correct legal framework, it is highly persuasive. Additionally, there is no medical opinion to the contrary. The Board acknowledges the Veteran's statements and assertions that his left shoulder disability worsened during service and his current condition is related to that service. While lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology, as a lay person, the Veteran does not have the training or expertise to render a competent opinion which is more probative than the VA examiner's opinion on this issue, as this is a medical determination that is complex. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The September 2021 VA examiner stated full consideration of the Veteran's statements, reports of symptoms, and medical history in opining his in-service dislocations were the natural progression of his preservice injury. Accordingly, there evidence demonstrates that it was clear and unmistakable the Veteran had a preexisting left shoulder disability upon service entrance. However, there is clear evidence that there has been no permanent aggravation in the severity of the preexisting condition beyond its natural progression. As such, entitlement to service connection must be denied. 38 C.F.R. § 3.306. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tabitha Chapman, 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.