Citation Nr: 22015455 Decision Date: 03/17/22 Archive Date: 03/17/22 DOCKET NO. 04-39 353 DATE: March 17, 2022 ORDER Entitlement to service connection for a right shoulder disability, to include as secondary to service-connected disabilities, is denied. FINDING OF FACT The Veteran's right shoulder disability is not attributable to his military service either directly, presumptively, or secondarily meaning it did not onset during his service or within a year of his discharge and is not otherwise shown to be the result of his service, including caused or aggravated by any service-connected disability. CONCLUSION OF LAW The criteria are not met for entitlement to service connection for a right shoulder disability, including as secondary to any service-connected disability. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1983 to May 1987. This appeal to this Board of Veterans' Appeals (Board) is from a July 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), otherwise known as the Agency of Original Jurisdiction (AOJ). The Veteran since has had two hearings concerning this claim before Veterans Law Judges (VLJs) of this Board initially in September 2008 and more recently in May 2019. Transcripts of both hearings are of record. Because those hearings were before two different presiding VLJs, in June 2020 the Veteran was given opportunity to have an additional (i.e., third) hearing before a panel of three VLJs that ultimately would decide this appeal. But in July 2020, in response, he indicated that he did not want another hearing concerning this claim requesting, instead, that the panel of three VLJs proceed to considering his appeal based on the evidence already of record. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). In October 2020 and again in October 2021, the Board remanded this claim back to the RO, so back to the AOJ, for further development and consideration that included obtaining needed medical comment concerning the origins or etiology of the Veteran's right shoulder disability in relation to his military service especially in terms of whether directly incurred during his service or alternatively secondary to (meaning caused or aggravated by) any service-connected disability. There since has been the required compliance certainly the acceptable substantial compliance, with the Board's 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 the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Entitlement to service connection for a right shoulder disability, to include as secondary to service-connected disabilities The Veteran attributes his right shoulder disability to his military service, either directly or secondarily by way of service-connected disabilities more specifically, his low back and bilateral (left and right) knee disabilities. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a relevant disease or an injury; and (3) a correlation ("nexus") between the disease or injury in service and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases like arthritis are considered "chronic", per se, and therefore will be presumed to have been incurred in service if they manifested to a compensable degree (generally meaning to at least 10-percent disabling) within a year of the Veteran's separation from service, although this presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Service connection also may be established on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability, although compensation in this latter instance is limited to the extent disability owing to the aggravation. 38 C.F.R. § 3.310(a) and (b). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail on the issue of secondary service connection, the record must show: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) evidence establishing a connection between the service-connected disability and the current disability either by a) causation or b) aggravation. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 999 F.3d 1391 (2021); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The Veteran has current diagnoses of degenerative arthritis and residuals of a rotator cuff tear of his right shoulder. He consequently underwent arthroscopic surgeries in/around 1996, 1998, and 2002/2003 to repair damage to this shoulder. So, there is no disputing he has this claimed disability. Thus, resolution of this appeal turns, instead, on whether there also is the required attribution of this disability to his service, i.e., a "nexus" either directly, presumptively, or by way of a service-connected disability. See Watson v. Brown, 4 Vet. App. 309, 314(1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). The Veteran claims that his military occupational specialty (MOS) caused discomfort in this shoulder while he was on active duty. However, prior to an accident since his service ("intercurrent injury") in 1996 or thereabouts, there is no mention of any complaints or treatment referable to his right shoulder. His service treatment records (STRs) notably indicate he sought treatment for other health-related issues or concerns, including for his since determined to be service-connected bilateral knee disability, but there was no mention of any additional disability involving his right shoulder. Since he complained of other ailments, it stands to reason that, if he also had complaints or been experiencing symptoms referable to his right shoulder, this, too, would be reflected in his STRs, but it clearly is not. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears the fact would have been recorded if present). In fact, during his October 1986 medical examination in anticipation of his separation from service, he specifically denied having a "painful" or "trick" shoulder. His military service ended in May 1987. It is further worth pointing out that, during his initial September 2008 hearing before this Board, the Veteran himself testified that his right shoulder problems did not start until in 1996 or thereabouts, so not until almost 10 years after he had separated from the military. That was long after his service, even well beyond the permissible one-year grace period immediately following conclusion of his service allowing for initial manifestation of arthritis to, in turn, warrant presuming it was incurred during his service. That long a lapse of time between his separation from service and the earliest documentation of this disability now being claimed is a factor for consideration in deciding whether service connection is warranted and tends to refute any notion this disability onset during his service, within a year of his discharge, dates back to his service, or is otherwise related or attributable to his service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Mense v. Derwinski, 1 Vet. App. 354 (1991) (holding that VA did not err in denying service connection when the Veteran had failed to provide evidence demonstrating continuity of symptomatology and had failed to account for the lengthy period following service during which there was no clinical documentation of the claimed disorder). Regarding the alternative notion of secondary service connection, the Veteran argues that his initial right shoulder injury in 1996 was due to a fall caused by his knees giving out (i.e., owing to his service-connected bilateral knee disability). A July 1998 medical treatment note confirms the Veteran injured or possibly had reinjured his right shoulder. The diagnosis was rotator cuff tendonitis. In February 2000, an occupational injury report noted complaints of right shoulder pain owing to an intervening fall in September 1999, though the objective findings indicated his right shoulder was "normal." According to April 2003 VA treatment records, the Veteran reported falling while at work (so at his civilian job) sometime in 1996, and that the fall "probably" was from his knees giving out. In the more recent February 2022 Appellate Brief, however, that fall was attributed instead to him being "startled by a dog." Regardless, the Veteran initiated claims to obtain Workers' Compensation payments and disability benefits from the Social Security Administration (SSA) in the aftermath of that post-service accident. Other medical records in the file show the Veteran initially was injured while working in 1996, but these records make no mention that it was due to a fall. After that injury in 1996, he had arthroscopic surgeries in 1996, 1998, and 2002/2003. In April 1998, so in the interim, the Veteran was treated by Dr. D., who recounted that the Veteran's right shoulder condition had its onset in September 1996 and had led to treatment in January 1997 "with possible rotator cuff or spur surgery." His condition had resolved by the summer of 1997, but he began experiencing pain once he returned to working as a carrier for the U. S. Postal Service (USPS). After considering the Veteran's symptoms, Dr. D. surmised the Veteran "may have a rotator cuff tear or impingement." The Veteran returned to Dr. D. in May 1998, "complaining that his right shoulder is feeling worse." He had an MRI that revealed "calcification in the rotator cuff and 'tendinosis' and possibly impingement." Based on those findings, Dr. D. and the Veteran discussed additional surgery to attempt to correct the problem. In December 1998, the Veteran underwent additional shoulder surgery, with a postoperative diagnosis of posterior subluxation and impingement syndrome. In March 2000, the Veteran again reported injuring his right shoulder. It is unclear whether he was referring to the initial injury in 1996 or another more recently. However, in any event he said that his condition had improved "over the last several days." Ten days later he was seen for additional medical treatment and complained of pain in his legs but denied (or otherwise did not report) continuing shoulder pain. As such, it appears his shoulder issued had resolved by that time. In February 2001, the Veteran sustained yet another right shoulder injury, and his medical treatment notes indicate he resultantly initiated a "new" workers' compensation claim. The cause of the latest injury was "keyboard computer training," which resulted in pain in his right shoulder and arm. The evaluating doctor diagnosed shoulder sprain. However, a follow-up consultation in September 2001 determined the Veteran's condition had resolved, as none was then noted. A February 2002 physical therapy note shows the Veteran was being seen for a rotator cuff injury. In July 2002, he had another shoulder surgery, but a treatment record from in August 2002 shows he was "doing well" postoperatively. It was not until around June 2003 that he first reported that his fall years earlier, in 1996, was "probably" due to his left knee disability. He also for the first time reported injuring his right shoulder even earlier while on active duty. However, and in any event, the examining physician found no evidence to substantiate either claim. In November 2003, the Veteran again claimed that he fell because of instability in his knee. A December 2003 MRI of his right shoulder found no definitive evidence of a rotator cuff tear, though there was some fragmentation of the labrum. The radiologist surmised that the most likely cause of the Veteran's shoulder pain was a "suprascapular nerve injury or referred pain from [his] neck." The Veteran does not have any service-connected disability referable to his cervical spine (i.e., neck), only instead disability referable to his lumbar spine (low back). In June 2005, an X-ray revealed the Veteran had mild degenerative joint disease (i.e., arthritis) due to an accident "in 1995." Notably, he described his accident as an "industrial injury" and made no mention that his knees were implicated by causing him to fall (despite complaining about the effect of his knee injuries). The examining physician took note of the Veteran's prior surgeries and indicated they have not been particularly helpful. A July 2005 MRI found mild irregularities of his right shoulder. In September 2005, he reported to a non-VA practitioner that his knee buckled, but there was no objective evidence of instability in either knee. That said, the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) has explained that the Board cannot categorically favor medical evidence over lay evidence when determining whether a knee is unstable. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). It is permissible, however, to give more credence to one versus the other when there is sufficient reason or explanation for doing that. And, here, the Board considers the objective findings more probative since the tests given were specifically to determine whether the Veteran's knees were unstable. In September 2007, the Veteran applied for disability benefits through the SSA. According to him, his first injury to his right shoulder was in 1996, though he injured it again in 2002 or thereabouts. He explained that second injury was from him "lifting heavy parcels" while at work. He did not attribute that additional injury to falling because of his bilateral knee disability. Physical examination determined there was limited range of motion in his right shoulder. In other testimony during his September 2008 hearing before this Board, the Veteran conceded that all his right shoulder injuries had happened after his separation from the military. Moreover, during his subsequent August 2009 VA knee examination, he admitted that he was "unsure" of whether his knees give way, and the examiner found no evidence of instability in either knee. In September 2009, the Veteran submitted a written statement conversely alleging that his fall in early 1996 was because his knee "buckled or gave out." He also claimed that subsequent "falls and near falls has[sic] caused aggravation" to his right shoulder injury. In an October 2010 written statement, the Veteran recounted that his knee would "periodically give out on him," and that his right shoulder disability is "etiologically related to his knee condition" so "linked to his knee." He made similar allegations on an October 2013 VA Form 21-4138, Statement in Support of Claim, but this determination ultimately is beyond his lay competence. Kahana v. Shinseki, 24 Vet. App. 428 (2011) (explaining that whether lay versus medical evidence is needed to substantiate a claim is a fact-specific, so case-by-case, determination based on the specific type of condition being claimed in terms of whether simple or instead complex). Determining the origins of the specific type of disability the Veteran has referable to his right shoulder is not a mere simple determination, rather, complex. See also 38 C.F.R. § 3.159(a)(1) and (2). In March 2014, the Veteran submitted another Statement in Support of Claim, alleging that a February 2013 MRI report had agreed that his right shoulder injury was a "result from a fall due to his knees." But a review of his medical file shows no such finding or suggestion in that February 2013 MRI. In May 2014, the Veteran said that he only had been having issues with his right shoulder "for about a year" so only since 2013 or thereabouts. It is unclear whether that examiner merely misinterpreted what the Veteran said, but, regardless, an August 2014 treatment note so from later that same year, shows that, while his knee gives the "sensation" of giving way, there is no evidence that it actually does, and there is "no locking or catching." A subsequent November 2014 VA examination similarly found no evidence of instability in either knee. The Veteran received physical therapy from non-VA providers in 2014 and 2015. He reported falling in 1996 and injuring his right shoulder but made no mention of knee instability, generally, or as the cause of his fall specifically. During his additional May 2019 hearing before this Board, the Veteran reiterated the alleged circumstances surrounding his fall, but there were not any new facts, evidence, or arguments concerning it. In 2019, the Veteran underwent imaging of both his knees and right shoulder. An April 2019 X-ray of his left knee showed mild tri-compartment osteoarthritis, but otherwise the physician noted the knees were "stable." An MRI and X-ray of the Veteran's shoulder showed moderate degenerative changes and an overall worsening of his condition, which were "concerning for rotator cuff pathology." However, neither his radiologists nor treating physicians gave any opinion on the cause of his right shoulder condition or impairment. As already alluded to, in October 2020 the Board remanded this claim back to the RO (AOJ) for more medical comment on the origins of the Veteran's right shoulder disability, especially in terms of whether caused or aggravated by any of his service-connected disabilities, particularly his bilateral knee disability. In February 2021, pursuant to that remand directive, a medical opinion was provided regarding this determinative issue of the etiology of the Veteran's right shoulder disability. Based on review of the Veteran's medical file as well as an in-person examination, the examiner diagnosed right rotator cuff tear along with degenerative arthritis of the right shoulder. But as for whether the Veteran's service-connected disabilities, specifically his left and right knee disabilities, caused or aggravate his right shoulder condition, the examiner responded that it is less likely than not that is the case. In explanation, this examiner indicated this is because there is no evidence in medical literature to support a knee disability aggravating shoulder arthritis. The examiner then goes on to note that the nature of the Veteran's work at the USPS (e.g., constant picking up, putting down, and carrying of moderately heavy loads) can cause wear and tear on the shoulder over time, so the examiner considered that a more likely cause of the Veteran's right shoulder disability. In October 2021, the Board again remanded this claim for still more needed medical comment, but this time for an addendum medical opinion addressing both direct and secondary service connection since all potential theories of entitlement must be considered. Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004); Robinson v. Peake, 21 Vet. App. 545, 552 (2008), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). This addendum opinion was provided in November 2021. This VA examiner determined that, since there was no evidence of an in-service accident, injury, or disease, combined with the Veteran's denial of experiencing any shoulder issues during his separation examination, there was nothing suggesting his right shoulder condition was caused by, is due to, or was otherwise incurred during his period of active-duty service. Also, just as the February 2021 examiner had concluded, this November 2021 examiner also determined the Veteran's right shoulder condition is not aggravated by any service-connected disabilities, as there is no evidence of record suggesting this. It was noted in closing that the Veteran's right shoulder disability has nothing to do with any of his service-connected conditions. The examiner acknowledged that, while the Veteran "likely broke his fall [in 1996] on the job with his [right] shoulder," there is nothing showing it "was due to any service-connected condition." The VA medical opinions against this claim are more probative than the Veteran's unsubstantiated lay assertions. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Since, for the reasons and bases discussed, the probative evidence against this claim is not in approximate (nearly equal) balance, i.e., relative equipoise, the benefit-of-the-doubt rule or doctrine is inapplicable, and this claim must be denied. See Lynch v. McDonough, 999 F.3d 1391, 1395 (Fed. Cir. 2021). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals S. B. MAYS Veterans Law Judge Board of Veterans' Appeals A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, 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.