Citation Nr: 22012140 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 14-40 384A DATE: March 2, 2022 ORDER Service connection for a right shoulder condition, to include as secondary to service-connected post-operative thyroidectomy, is denied. FINDING OF FACT The weight of the evidence is against a finding that the Veteran's right shoulder condition had its onset during active service, had its onset during an applicable presumptive period following service, is otherwise related to active service, or that it is caused or aggravated by her service-connected post-operative thyroidectomy. CONCLUSION OF LAW The criteria to establish service connection for a right shoulder condition, to include as secondary to service-connected post-operative thyroidectomy, have not been met. 38 U.S.C. § 1110, 1112, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1985 to October 1988. A July 2021 joint motion for partial remand (JMPR) from the Court of Appeals for Veterans Claims (Court) vacated and remanded the June 2020 Board of Veterans' Appeals (Board) decision that denied service connection for a right shoulder condition. The issue was previously before the Board in May 2019 when the issue was remanded for a VA examination, which was conducted in November 2019. However, the Court found that the November 2019 VA examination is inadequate because the examiner did not address the Veteran's service treatment records (STRs), as instructed in the May 2019 Board remand. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). Pursuant to the July 2021 JMPR, the Board remanded the issue in November 2021 for a new VA examination. A new VA medical opinion was provided in January 2022. Service connection for a right shoulder condition, to include as secondary to service-connected post-operative thyroidectomy, will be denied because the evidence does not show that the condition had its onset during active service, had its onset during an applicable presumptive period following service, is otherwise related to active service, or that it is caused or aggravated by her service-connected post-operative thyroidectomy. Service Connection Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Where a disease is first diagnosed after discharge, service connection will be granted when all the evidence, including that pertinent to service, establishes it was incurred in active service. 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Service connection requires evidence showing: (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 condition incurred or aggravated by service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection on a secondary basis is merited if there is (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus (i.e., link) between the service-connected disability and the current disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). Service connection may also be established for a current disability based on a presumption that certain chronic diseases that manifested to a compensable degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). Service connection for a recognized chronic disease can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in-service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. In deciding an appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and explain its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination about the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr, 21 Vet. App. at 303. Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When there is an approximate balance of positive and negative evidence regarding any material issue, or the evidence is in relative equipoise, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service connection for a right shoulder condition, to include as secondary to service-connected post-operative thyroidectomy, is denied. The Veteran was assaulted in-service, and she is service-connected for major depressive disorder (MDD) with post-traumatic stress disorder (PTSD) as a result. The Veteran contends that her current right shoulder condition is related to an injury that she sustained during her in-service assault. Alternatively, the Veteran contends that her right shoulder condition is related to her in-service thyroid lobectomy and her service-connected post-operative thyroidectomy. For the following reasons, service connection is not warranted on any basis, and the claim is denied. VA treatment records show treatment for right shoulder pain since 2012. The Veteran has a current diagnosis of right shoulder adhesive capsulitis. The Veteran's STRs show that she underwent a subtotal thyroidectomy for multi-nodular goiter in June 1988. In an October 1990 report of medical history generated during her Army Reserve service, the Veteran reported a painful or "trick" shoulder or elbow. She stated that her right shoulder stiffens at times, and that it catches and pops with certain motions. The accompanying medical reports does not mention the Veteran's active service as a cause for her shoulder symptoms. An October 2012 private medical record shows that the Veteran was involved in a motor vehicle accident (MVA) when she was hit from behind in September 2012. The Veteran reported that she felt sore and had pain in her shoulder the day following the MVA. During the October 2018 Board hearing, the Veteran alleged that her right shoulder condition is related to her in-service assault that gave rise to her service connected MDD with PTSD. The Veteran was provided a VA examination in November 2019. The examiner was specifically asked to provide opinions as to whether the Veteran's right shoulder condition is related to her service, to include her in-service assault, and whether the condition is caused or aggravated by her in-service thyroid lobectomy, to include her service-connected post-operative thyroidectomy. In providing the requested opinions, the examiner was asked to specifically address the October 1990 report of medical history showing complaints of right shoulder symptoms. Upon examination, the examiner noted a diagnosis of right shoulder adhesive capsulitis. The Veteran reported that she first injured her right shoulder during her in-service assault, but that she was not medically evaluated at the time. She reported that she has had pain in her right shoulder since service, to include difficulty with lifting heavy objects. She also reported involvement in a MVA in September 2012. The examiner opined that the Veteran's right shoulder condition is less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that there is no objective evidence of a right shoulder condition during active service, and that the Veteran does not have a current right shoulder condition that would have been sustained during active service. The examiner also opined that the Veteran's right shoulder condition is less likely than not proximately due to or the result of her service-connected thyroid condition. The examiner stated that the right shoulder condition is a separate entity entirely from the service-connected condition of her thyroid surgeries and is unrelated to it, and that the medical literature does not support a medical relationship between the two disabilities. However, the examiner did not discuss the October 1990 report of medical history. As such, the examination is not adequate. See Barr, 21 Vet. App. at 311. Pursuant to the November 2021 Board remand, a VA medical opinion was obtained in January 2022. The examiner noted that the Veteran has a diagnosis right shoulder adhesive capsulitis with mild degenerative joint disease (DJD) of the acromioclavicular (AC) joint. The examiner opined that the Veteran's right shoulder condition is less likely than not incurred in or caused by the claimed in-service injury, event, or illness, to include her in-service assault. The examiner noted the October 1990 report of medical history showing reported right shoulder stiffness and crepitus. However, the examiner noted that there is otherwise no evidence of a right shoulder condition in-service and stated that it is highly unlikely that a significant shoulder condition would have gone unnoted or unreported. The examiner stated that the Veteran's complaints in the 1990 report of medical history would not likely be related to the current adhesive capsulitis because any event or injury leading to such a diagnosis would have been self-evident. The examiner also stated that it is highly unlikely an individual could have performed the functions required for military service with injuries leading to adhesive capsulitis. The examiner opined that it is more likely than not that the Veteran's right shoulder adhesive capsulitis had onset in or after 2012 because there is no evidence of an active or chronic condition in-service, at separation, or within one year of service separation. The examiner stated that there is no evidence to suggest that the right shoulder complaints were chronic because there is no evidence of a condition after 1990 until 2012 when the Veteran was involved in a MVA. The examiner stated that the mild osteophyte formation found on x-rays in 2012 is likely naturally occurring due to normal wear and tear over a lifetime and the current condition, at least partially, involves the 2012 MVA. The examiner also stated that any trauma causing adhesive capsulitis would have been evident if it were due to events in-service, to include her in-service assault. The examiner also opined that the Veteran's right shoulder condition is less likely than not proximately due to or aggravated beyond natural course by the service-connected thyroid condition. The examiner stated that there is no anatomic or pathophysiologic mechanism by which thyroid conditions, including subtotal thyroidectomy, can cause or aggravate an orthopedic shoulder condition. The examiner stated that this is established medical knowledge at the fourth-year medical student level. Although the Veteran believes that her right shoulder condition is related to her service, to include her in-service assault, she lacks the knowledge and training required to render a nexus opinion on a cause-and-effect relationship unobservable to a lay person. Kahana, 24 Vet. App. at 435. No medical professional has opined that the Veteran's current right shoulder condition is related to service in any way. Service connection on a direct basis must be denied because the competent evidence shows that the right shoulder condition was neither caused nor aggravated by service; nor does it show that the Veteran experienced symptoms of the condition that continued from service until the present. Rather, the January 2022 VA examiner stated that symptoms reported in the October 1990 report of medical history would not likely be related to the current adhesive capsulitis because any event or injury leading to such a diagnosis would have been self-evident at the time and it is highly unlikely an individual could have performed the functions required for military service with injuries leading to adhesive capsulitis. The examiner also stated that the mild osteophyte formation found on x-rays in 2012 is likely naturally occurring due to normal wear and tear over a lifetime and the current condition, at least partially, involves the 2012 MVA. The examiner stated that any in-service trauma causing adhesive capsulitis would have been evident if it were due to events in-service, to include her in-service assault. Service connection on a secondary basis must also be denied because the competent evidence shows that the right shoulder condition is not proximately due to or aggravated by the service-connected thyroid condition. The January 2022 VA examiner opined that the Veteran's right shoulder condition is less likely than not proximately due to or aggravated beyond natural course by the service-connected thyroid condition. The examiner stated that there is no anatomic or pathophysiologic mechanism by which thyroid conditions, including subtotal thyroidectomy, can cause or aggravate an orthopedic shoulder condition. In conclusion, service connection for a right shoulder condition is not warranted on any basis. There is no reasonable doubt to be resolved in this case. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, at 1 Vet. App. 49 (1990). Vito A. Clementi Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Timothy T. Emmart The Board's action is binding only in this case. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.