Citation Nr: 22014930 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 17-15 658 DATE: March 15, 2022 ORDER Entitlement to service connection for a right shoulder disorder, only on a direct basis, is denied. REMANDED Entitlement to service connection for a right shoulder disorder, only as secondary to service-connected cervical spine strain, is remanded. FINDING OF FACT The evidence of record persuasively weighs against finding that a right shoulder disorder began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a right shoulder disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1988 to February 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2019, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A hearing transcript is associated with the record. In February 2020, the Board denied the issue on appeal. See BVA Decision (February 2020). The Board also remanded the issue of entitlement to service connection for a right knee disorder. While on remand, service connection for a right knee disorder was granted and thus the issue is no longer on appeal. See Rating Decision (October 2020); Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The Veteran appealed the Board decision denying service connection for a right shoulder disorder to the United States Court of Appeals for Veterans Claims (CAVC or Court). In a January 2021 Order, the Court endorsed the findings of a parties' Joint Motion for Remand (JMR) and vacated the Board's decision with regard to that issue. See CAVC Decision (January 2021). The JMR provided that vacatur and remand were required due to failure to comply with VA's duty to assist. The JMR noted that because the right knee disorder was remanded to obtain additional STRs, the right shoulder disorder should also be remanded pending receipt of any additional STRs. The JMR also indicated that the Board should address the failure to obtain vocational rehabilitation records, ensure the personnel records are complete, obtain private treatment records, and address whether a VA examination should be provided. See CAVC Decision (January 2021). In May 2021, the Board remanded this issue. See BVA Decision (May 2021). The Board directed the RO to obtain authorizations for private medical records, to obtain VA treatment records, and to obtain vocational rehabilitation records. See BVA Decision (May 2021). Additional VA treatment records were obtained. See CAPRI (February 2020); CAPRI (June 2021). It was determined that vocational rehabilitation records had been destroyed and the Veteran was so notified. See Email Correspondence (November 2021); Final Attempt Letter (November 2021). Additional personnel records had been obtained after the February 2020 Board decision. See Military Personnel Record (February 2020). In June 2021, the RO requested authorizations from the Veteran for any relevant private treatment. See Subsequent Development Letter (June 2021). The Veteran submitted authorizations for 4 different medical treatment providers, and a statement in which he asserted he did not remember any other medical treatment. See VA 21-4142 Authorization for Release of Information (July 2021); Correspondence (July 2021). Medical records were obtained from one of the medical providers. See Medical Treatment Record Non-Government Facility (August 2021). For the other three medical providers, two attempts were made to obtain records. See VA 27-0820 Report of General Information (August 2021). When no such records were obtained, the Veteran was so notified. See Notification Letter (July 2021); Notification Letter (August 2021). Accordingly, the Board may proceed to adjudicate the issue on appeal. 1. Entitlement to service connection for a right shoulder disorder, only on a direct basis, is denied. The Veteran contends that his right shoulder disability began during service. He asserts that he sustained an injury while stationed at Dover Air Force Base where a 300-pound concrete block partly landed on his right shoulder. See Hearing Transcript (November 2019); VA 21-4138 (October 2020). The Board finds the most persuasive evidence of record demonstrates weighs against finding that the Veteran has a right shoulder disorder that had its onset in service or is otherwise related to in-service injury or disease. There is no event, injury, or disease during service and no other relationship to service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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 disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, while there is competent, credible evidence of a current right shoulder disability, the most persuasive evidence of record shows that it did not have its onset in service and is not otherwise related to service, as explained below. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). Private medical records indicate a surgery of the right shoulder, and a postoperative diagnosis of impingement syndrome and subacromial bursitis. See Medical Treatment Record Non-Government Facility (April 2014). Another private medical record noted chronic bursitis of the right shoulder. See STR Medical Photocopy (March 2017). Second, the Board finds that there was not an in-service event, injury, or disease. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). This is the crux of the case on appeal. The Veteran has alleged his right shoulder disorder is due to an in-service injury. See VA 21-4138 (October 2020); Correspondence (October 2020). The Veteran asserts that, while serving at Dover Air Force Base, an incident occurred where a concrete slab was dropped on that shoulder. See VA 21-4138 (October 2020). He reported he had a sling and immobilizaton for weeks along with medication. See VA 21-4138 (October 2020). The Board finds, however, that the evidence is persuasively against a finding that there was an in-service right shoulder injury. Notably, the STRs consistently indicate only left shoulder complaints. An August 2, 1990, STR shows that the Veteran reported a painful shoulder of 4 days after an incident while lifting concrete slabs. The assessment was bursitis/tendonitis of the left shoulder. This entry was signed by a medical practitioner, HM. See STR Medical (December 2013). An August 2, 1990, Physical Profile Report noted a painful left shoulder. The Veteran was in a sling and required restrictions of 2 weeks. This record was signed by HM and another officer. See STR - Medical (December 2013). Physical therapy records, dated on August 9th and August 14th, reflect that yet another medical practitioner, DG, noted complaints of left shoulder pain. See STR Medical (December 2013). In September 1990, the Veteran reported that his shoulder aches when he does a lot of lifting. On September 18th, the clinician, DG, noted the left shoulder pain had resolved. See STR Medical (December 2013). The Veteran has stated that he was unsure why the STRs note his left shoulder, as the injury was to his right shoulder. See Correspondence (October 2020). The Board notes, however, that the Veteran was seen during service by several medical providers, each of whom noted the injury was to the left shoulder. These statements of the injury to the left shoulder versus the right shoulder are assigned more probative weight, as they are contemporaneous and made by more than one medical clinician. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) (holding that contemporaneous evidence has greater probative value than history as reported by a claimant). Other lay statements were submitted from the Veteran's friends and a coworker that he had an injury to his shoulder; they did not indicate which shoulder. See Correspondence (April 2014). Furthermore, in a March 1992 VA examination, provided only one month after service discharge, although the Veteran reported the injury had occurred to his right shoulder, examination revealed no abnormal pathology of the right shoulder. See VA Examination (March 1992). This lack of residuals or abnormal pathology provides additional evidence that it was the left shoulder injured during service, and not the right shoulder. Likewise, at the Board hearing, the Veteran reported that the in-service incident was the only right shoulder injury he ever had. See Hearing Transcript (November 2019). But in a 2007 private medical record, the Veteran reported two injuries to the right shoulder the in-service incident and an automobile accident. See Medical Treatment Record Non-Government Facility (August 2021). Thus, the Veteran's testimony in this regarding is not credible, as it conflicts with prior evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a demeanor, showing of interest, bias, inconsistent statements, and consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). The Board thus finds that the evidence of record demonstrates that there was no in-service right shoulder injury. Third, the Board finds that the evidence of record does not support a finding that any right shoulder disorder is otherwise related to active service. First, the evidence indicates that right shoulder symptoms were not present until at least 1998, roughly 6 years after service discharge. This gap in time weighs against service connection. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology and failed to account for the lengthy time period for which there is no clinical documentation of disorder). In a July 2007 private medical record, the Veteran reported right shoulder and arm pain. The Veteran noted that the symptoms began 8 years prior, and that it was unknown how the symptoms began, although there was a prior accident. See Medical Treatment Record Non-Government Facility (May 2014). In a June 2007 private medical record, the Veteran reported a right shoulder injury in 1990 and then an auto accident in the late 1990s with some injury. He reported on and off right shoulder pain. See Medical Treatment Record- Non-Government Facility (August 2021). As it has been determined above that the in-service injury was to the left shoulder, this evidence supports a finding that right shoulder symptoms began in the late 1990s after service discharge. The Veteran has reported right shoulder symptoms during and since service discharge. See Hearing Transcript (November 2019). Although he is competent to provide such testimony, the Board does not find this credible as it is not consistent with the other evidence of record. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005) (noting that a lay witness is competent to report to factual matters of which he or she has first-hand knowledge); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that the credibility of a witness may be impeached by a showing of interest, bias, inconsistent statements, consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). At a March 1992 VA examination, conducted within one month of service discharge, the Veteran stated he had no complaints regarding his right shoulder. Similarly, the examiner found no right shoulder residuals. See VA Examination (March 1992). This lack of residuals within one month of service discharge conflicts with the Veteran's later statements of continuous symptoms since service. The Board thus finds that the evidence of record does not demonstrate right shoulder symptoms during and since service. Additionally, there is no positive opinion of record to associate any current right shoulder disorder to service. In this regard, VA did not provide the Veteran with an examination. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes providing a medical examination when is necessary to decide a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or recurrent symptoms of disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and active service, including equivocal or non-specific medical evidence or credible lay evidence of continuity of symptomatology). Here, there is a current right shoulder disability. As noted above, however, there was no in-service event, injury, symptoms, or disease. Remand for a VA examination, therefore, is not required. On balance, the evidence weighs against the claim. Accordingly, the claim is denied. As the evidence of record persuasively weighs against the claims, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to service connection for a right shoulder disability only as secondary to service-connected cervical strain is remanded. The Veteran contends that his right shoulder disability is due to his service-connected cervical strain disability. See Form 9 (February 2017). Service connection may be granted on a secondary basis for a disability that is proximately due to or the result of (caused) or permanently worsened beyond its natural progression (aggravated) by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc); 38 C.F.R. § 3.310. A claim for secondary service connection requires medical evidence that connects the asserted secondary disability to the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board finds that remand is warranted to obtain a medical opinion addressing whether his claimed right shoulder disability is secondary to his service-connected cervical spine disability. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. VA's duty to assist includes providing a medical examination when is necessary to decide a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The RO did not obtain an opinion addressing the question of secondary service connection although VA's duty to do so has been triggered. This is because, first, the Veteran had right shoulder acromioplasty and bursectomy in 2007. See Medical Treatment Record Non-Government Facility (April 2014). The postoperative diagnosis was impingement syndrome, and subacromial bursitis of the right shoulder. See Medical Treatment Record Non-Government Facility (April 2014). Second, the Veteran is also service-connected for cervical strain. See Rating Decision Codesheet (October 2020). Third, the Veteran has asserted there is a relationship between the two disabilities. See Form 9 (February 2017). Because there is evidence of a currently diagnosed disability, a service-connected disability, and an indication that the disabilities may be related, remand for a medical opinion is required. 38 C.F.R. § 3.159(c)(4); McLendon, 20 Vet. App. at 83-86. In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand. Accordingly, the matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from 2017 to the Present. 2. Obtain a medical opinion from an appropriate clinician to address ONLY whether his claimed right shoulder disability is secondary to his service-connected cervical spine disability. The entire claims file, to include a copy of this REMAND, should be made available to and reviewed by the clinician. The opinion should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s). The clinician should provide an opinion, with supporting rationale, as to: Whether the Veteran's right shoulder disability is at least as likely as not (1) proximately due to service-connected cervical strain, or (2) aggravated beyond its natural progression by service-connected cervical strain. Provide a rationale that deals with causation and aggravation as independent concepts. Explain. NOTE (1): An adequate medical opinion may not be predicated solely on the absence of literature supporting causation or aggravation without discussing those facts specific to this Veteran. NOTE (2): If any medical history is rejected, a complete explanation is required. 3. Ensure that the medical opinion obtained includes a complete rationale for the conclusions reached. The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K.M., 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.