Citation Nr: 22013777 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 18-37 705 DATE: March 10, 2022 ORDER Service connection for a left shoulder disability is denied. FINDING OF FACT The evidence is not in approximate balance but is persuasively weighted against finding that the Veteran has a left shoulder disability that is causally related to service. CONCLUSION OF LAW The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps and U.S. Marine Corps Reserve from June 1997 to June 2001 and from February 2003 to May 2004, respectively. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2017 rating decision. In October 2020, the Board remanded the appeal to the RO for additional action. In a November 2021 decision, the Board determined that its October 2020 remand directives were not substantially complied with, and this matter was again remanded. The Board now finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board's remand directives is required under Stegall). Service connection for a left shoulder disability In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110. "Service connection" basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Establishing service connection generally requires competent evidence showing: (1) the existence of a current disability; (2) 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. Shedden v. Principi, 381, F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Certain chronic diseases, including arthritis, are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309 (a). Arthritis is a qualifying chronic disease. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether evidence submitted by a claimant is credible, VA may consider internal consistency, facial plausibility, and consistency with other evidence. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995). VA can also consider bias in lay evidence and conflicting statements of a Veteran in weighing credibility. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). A service treatment record (STR) dated September 2000 shows that a tailgate from a five-ton truck fell on the Veteran's left shoulder. The Veteran reported left shoulder pain, numbness, and was diagnosed with a left shoulder contusion. A service treatment record dated September 2000 reflects the Veteran's report of left shoulder pain, soreness, popping, and limited range of motion. A left shoulder physical examination revealed tenderness to palpation, limited range of motion, and decreased strength. The Veteran was diagnosed with a resolving left shoulder contusion. In her May 2001 pre-separation medical history report, the Veteran answered "no" to the question of whether she then had, or once had a painful or trick shoulder. In the Veteran's May 2001 pre-separation medical examination report, the service medical examiner noted no upper extremity abnormalities. In her May 2001 service report of medical assessment, the Veteran answered that her health was "the same" compared to the last medical physical examination and "no" to the question of whether she then had any other questions or concerns about her health. In a July 2009 VA treatment record, the Veteran did not report any musculoskeletal symptoms. During the April 2017 VA examination, the Veteran reported left shoulder pain since service separation. A left shoulder radiograph revealed no significant abnormalities. The Veteran was diagnosed with left shoulder rotator cuff tendonitis. During the May 2021 VA examination, the Veteran reported left shoulder pain since service separation. A left shoulder radiograph revealed mild degenerative joint disease. The Veteran was diagnosed with left shoulder acromioclavicular joint osteoarthritis. The May 2021 VA examiner offered a negative etiology s as to presumptive service connection under § 3.309(a) and direct service connection, he also stated that the Veteran "clearly continues to have pain in her left shoulder which shows a continuation from her original injury in 2000" and then indicated "some caveats" and "some concerns" due to the Veteran's "preconceived endpoints" for range of motion testing. The Board therefore remanded this matter in a November 2021 decision for an addendum medical opinion. A December 2021 VA medical opinion was completed by the same examiner who performed the May 2021 VA examination and was associated with the record. The clinician indicated that they reviewed the Veteran's medical records and determined that there was no continuation of a left shoulder injury that was incurred during service. As a rationale, the examiner explained that the in-service blow to the top of the shoulder would cause a fracture or contusion depending on the force of the blow but would not cause a rotator cuff tendonitis as this would be more of a rotational-type injury or lifting injury and not sustained during a direct blow to the shoulder. In addition, x-rays performed seven years after the in-service injury showed no signs or degenerative conditions in the shoulder, with subsequent x-rays three years later, 21 years after the injury, showing some acromioclavicular osteoarthritis. The examiner explained that this could be due to the aging process but is not related to an injury that occurred 21 years prior with no residuals. The examiner also maintained that there's a significant difference in left shoulder range of motion measurements between the 2017 and 2021 VA examinations and that the Veteran's disability would not cause this degree of decrease in range of motion in just four years. In addition, the examiner reiterated that the Veteran was "guarding" and set endpoints for her range of motion measurements which demonstrated that she may have been exaggerating her symptoms. Initially, the Veteran has been diagnosed with left shoulder osteoarthritis which is a chronic disease under 38 C.F.R. §§ 3.307 and 3.309. However, the evidence fails to establish that any left shoulder osteoarthritis manifested within one year of separation from active-duty service or manifested in continuous symptoms since active-duty service. Rather, the evidence of record does not show any reports or treatment for this disability in the interim between the Veteran's separation from service and her submission of a claim for benefits in September 2016. Therefore, service connection is not presumed for left shoulder osteoarthritis as a chronic disease under the applicable regulatory provisions. 38 C.F.R. §§ 3.303(b), 3.307(a), 3.309(a). The Board has next determined that the Veteran's statements as to chronic or continuous left shoulder symptoms since her in-service injury are not credible. If she had been experiencing chronic or continuous symptoms since her shoulder injury during service in September 2000, it stands to reason that she would have mentioned this during her May 2001 service report of medical assessment or at some point during her many comprehensive overall health assessments spanning from 2009 to 2016. See Camp Lejeune Outpatient Treatment Records. Rather, the evidence tends to show a more recent onset of symptoms which occurred more than 15 years after the initial injury. Prior to these more recent contentions, her treatment records indicate a medical history consistent with no residuals of a left shoulder disability incurred during service. This history was provided to medical professionals prior to her VA claim for disability, when there was no incentive to fabricate information for personal gain financial or otherwise. Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) (finding that a pecuniary interest may affect the credibility of a claimant's testimony); Fed. R. Evid. 803 (4) (recognizing that statements made for the purpose of medical treatment generally are reliable); Rucker v. Brown, 10 Vet. App. 67, 73 (1997) ("[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board's reasons.")). Courts have recognized how medical history recounted in the course of medical evaluation and treatment is especially probative (trustworthy) because the declarant has inherent incentive to give the most accurate history to, in turn, receive the best or most appropriate medical care. See Rucker, 10 Vet. App. at 73 (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Based on this collective body of evidence, the Board finds that any statements as to a continuity of left shoulder symptoms since service are not credible based on the record, as a whole, including no mention of these symptoms for approximately 15 years following service. See Cartright, 2 Vet. App. at 25 (finding that, while the Board may not ignore a Veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits, personal interest may affect the credibility of the evidence); see also Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (credibility can be generally evaluated by a showing of interest, bias, or inconsistent statements, and the demeanor of the witness, facial plausibility of the testimony, and the consistency of the testimony). Further, with respect to direct service connection, the Board finds that the competent medical evidence is persuasively weighted against finding that the Veteran's left shoulder disability was incurred in or is causally related to the September 2000 in-service left shoulder trauma. the Board is particularly deferential to the findings in the December 2021 VA medical opinion which was authored by a trained medical doctor with experience and expertise in assessing the nature, causes, and progression of orthopedic disabilities. The examiner demonstrated a detailed familiarity with the Veteran's medical records in determining that it is less likely than not that the Veteran's left shoulder disability is causally related to service. The examiner explained that the Veteran's current disability is a rotational-type injury or lifting injury and has a different pathophysiology to residuals that would be sustained by a direct blow to the left shoulder. In addition, x-rays performed seven years after the in-service injury showed no signs or degenerative conditions in the shoulder, with subsequent x-rays three years later, 21 years after the injury, showing some acromioclavicular osteoarthritis. The examiner explained that this could be due to the aging process but is not etiologically related to a contusion that occurred 21 years prior with no residuals. Moreover, the Board has weighed lay contentions positing a causal relationship between a left shoulder disability and the September 2000 left shoulder trauma during service. While the Veteran is competent to report experiencing shoulder pain which is capable of lay observation, she is not competent to make determinations as to the nature and etiology of this disability. This determination requires specialized training and medical expertise which the Veteran and her representation have not been shown to possess but has been demonstrated by the December 2021 VA examiner. 38 C.F.R. § 3.159 (a)(1); see Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The evidence otherwise does not contain a medical opinion (i.e., a clinical opinion based on review of pertinent medical records containing an adequate rationale) that substantiates the nexus element (causal relationship) of the Veteran's service connection claim. To the extent that the Veteran's lay statements as to etiology are competent, the reasoned opinion of the VA examiner, which is supported by a cogent rationale, is of greater probative value. In summary, the evidence is not in approximate balance but is persuasively weighted against finding that service connection is warranted for a left shoulder disability. The claim therefore must be denied. Michael Sanford Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kyle McKone 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.