Citation Nr: 22016867 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 17-05 599 DATE: March 23, 2022 ORDER Entitlement to service connection for a left shoulder disability is denied. FINDING OF FACT The Veteran's left shoulder disability was noted at entry and thus preexisted his active-duty service, and clear and unmistakable evidence demonstrates that the Veteran's left shoulder disability was not aggravated during service. There is no evidence of aggravation of the left shoulder disability beyond its natural progression during service. CONCLUSION OF LAW The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C. §§ 1111, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.306, 3.309 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from June 1978 to August 1978 as a recruit trainee. This matter comes before the Board of Veterans' Appeals (Board) from an August 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans' Law Judge at a May 2021 Board virtual hearing. A transcript of the hearing has been associated with the claims file. Previously, the claim was before the Board in August 2021 and was remanded for additional development. The Board finds there has been substantial compliance with the prior remand directives, and the claim is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Service Connection A veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active service. 38 U.S.C. §§ 1110, 1131. 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. Shedden v. Principi, 381 F.3d 1163, 1167 Fed. Cir. (2004). For the showing of chronic disease in service there is required 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 or a diagnosis including the word "Chronic." When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303 (b). 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. Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. In order to rebut the presumption of soundness at service entry, there must be clear and unmistakable evidence showing that the disorder preexisted service and there must be clear and unmistakable evidence that the disorder was not aggravated by service. The Veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. VAOPGPREC 3-2003 (July 16, 2003); Jordan v. Principi, 17 Vet. App. 261 (2003); Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). However, where a preexisting disease or injury is noted on the entrance examination, section 1153 of the statute provides that "[a] preexisting injury or disease will be considered to have been aggravated by active military, naval, or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease." 38 U.S.C. § 1153; 38 C.F.R. § 3.306 (a). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition. 38 C.F.R. § 3.306 (b). Left Shoulder The Veteran contends that service connection is warranted for his current left shoulder disability due to an in-service injury. In addition, the Veteran contends that his left shoulder disability was aggravated by an injury in basic training. The Veteran is competent to describe his ongoing symptoms. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The question for the Board is whether the Veteran has a current left shoulder disability that began during active service or is at least as likely as not caused by an in-service injury, event, or disease; and whether the Veteran's current left shoulder disability that pre-existed service was aggravated or worsened by his service. In a November 1977 enlistment medical history questionnaire, the Veteran reported that he had sustained a fracture and dislocation of the left shoulder and had an inserted surgical pin. The Veteran stated that he was in good health but indicated at the time or in the past he had broken bones. He denied ever having arthritis and painful or trick shoulder. However, the Veteran reported that he had been in the hospital for and had a left shoulder injury. See October 2011 STR-Medical, p.3-4,6. In the November 1977 report of medical enlistment examination, a clinical evaluation revealed a left shoulder scar. The military examiner noted good results, full range of motion, and normal strength. During his active duty, the Veteran sought treatment on August 14, 1978 for low back pain. A clinician diagnosed muscle spasms and prescribed a muscle relaxant medication, surface ointment, and heat application. There was no report by the Veteran of shoulder pain. Ten days later in August 1978, the Veteran declined to undergo a discharge physical examination and reported no change in his medical condition. He received an honorable discharge for non-medical reasons but rather for failure to pass the communications (MOS) skills test despite extra study. His instructor noted that the Veteran declined help. There was no mention of injuries, family emergencies, or physical reasons for discharge. Military Personnel Record, p.1; October 2011 STR-Medical, p.9;16. In September 2012, the Veteran was afforded a VA shoulder and arm examination. The examiner cited a previous diagnosis of left humerus fracture status post pinning, diagnosed in 1976 and noted a recent diagnosis of mild degenerative joint disease of thee left. The Veteran reported that he injured his left shoulder in 1976 prior to service, while playing football, and underwent surgery. The Veteran stated he reinjured his shoulder in basic training in 1978 and developed left arm and shoulder pain with swelling. The examiner referred to the November 1977 report of medical history that showed that the Veteran had a fracture of the shoulder with full range of motion and superb strength. The Veteran reported to the examiner that he had chronic left shoulder pain since service, rated at a 7/10, 2-3 times a week. The Veteran stated that he took over counter medicine for the pain but had never had treatment for left shoulder pain. The Veteran denied any additional trauma or injury and had not had surgery since 1976. The Veteran did not use any assistive devices and he was able to perform daily activities without difficulty. The Veteran's condition impacted his ability to work. Te Veteran had worked as a builder for 1 year and 2 months but had been laid off 1 month prior to the examination. The Veteran stated that he had to take off work every 1-2 months due to left shoulder pain. The examiner found that there was no reason to believe his left shoulder condition was related to his military service, because it was most likely due to his pre-existing left shoulder injury. In a February 2015 VA treatment note, a clinician noted that the Veteran had chronic left shoulder pain. See May 2015 VAMC Other Output/ Reports, p.9. In June 2015, the Veteran was afforded another VA shoulder and arm examination. The examiner reviewed the claims file; considered the subjective accounts; and conducted an evaluation. The examiner diagnosed bilateral glenohumeral joint arthritis; bilateral degenerative arthritis, both diagnosed in June 2015. The Veteran had a previous diagnosis of traumatic arthritis in September 2012. The Veteran also had fracture proximal humerus and dislocation left glenohumeral joint surgically repaired in 1976. The Veteran reported that left shoulder would swell and was painful when he did exercises in military. The Veteran indicated clearly that when he first went into service, he did not have pain and then in service he had pain from handling a lot of weight and doing a lot of exercises. He stated that after he left military, he eventually was seen for treatment but was unsure when first saw them. He stated that he had no recall of what was done, but later recalled having a sling occasionally and that he used a sling 8-9 months previous to the examination. On examination, the Veteran denied any left shoulder redness, heat, locking, giving way, or other complaints. The examiner noted that there were no records from 1978 until 2010. The examiner found that the claimed condition, which clearly and unmistakably existed prior to service, was not aggravated beyond its natural progression by an in-service event, injury or illness. The examiner stated that there was no finding of any aggravation beyond natural progression by any in-service event, injury, or illness; because there clearly was no in-service surgery despite his earlier claim to have had surgery in the military. Also, the examiner stated that there were not any real-time medical notes for over 30 years post-military, until 2012. The examiner stated that the glenohumeral osteoarthritis was age related and age appropriate, and not related to service. The left glenohumeral joint traumatic arthritis component was related to the pre-military trauma and repair; and the old left glenohumeral head findings suggested old fracture and proximal left humerus arthrodesis clip was from pre-military injury and surgical repair of fracture left humerus. In December 2015, the Veteran submitted a notice of disagreement. The Veteran reported that when he was in high school, he had surgery on his shoulder. Upon enlisting into the military, he stated that he was asked about the scar on his shoulder and told them it came from an injury from playing football. The Veteran stated that he was X-rayed and told he was fit for duty, but three weeks after boot camp started, he began having problems with his shoulder. The Veteran stated he was given a new X-ray and was given a medical discharge. He stated that he was accepted into service with his left shoulder issue and service aggravated the condition. See December 2015 NOD. In private treatment records in October 12, 2018, a clinician noted the Veteran's report of injury in a motor vehicle accident with the onset of shoulder pain the day earlier. In November 2020, he sought treatment for shoulder pain from a pin in the shoulder but reported no new injury. There was no mention of activities in service. In a February 2021 private treatment record, a clinician noted a diagnosis of left shoulder pain, unspecified chronicity. See January 2022 Medical Treatment Record-Non-Government Facility, p.33. In private treatment records in March 2021, the Veteran reported the onset of left shoulder pain three to four months earlier. In May 2021, the Veteran attended a virtual Board hearing. The Veteran testified that prior to his service he injured his shoulder when he played sports and he was unable to play when he had surgery on his shoulder. The Veteran stated on enlistment he was not sure if his condition was known but he was accepted into the military. The Veteran testified to an in-service aggravation of his left shoulder disability during an injury in basic training. He testified that while carrying weapons and gear during a field exercise his left arm swelled up and he had pain. The Veteran testified that he was seen by the medic for this injury then again soon after discharged from service. The Veteran testified to a worsening of his left shoulder in-service, and that these symptoms have continued since worsening over time. The Veteran indicated that he had medical treatment in-service. He said he was given medicine, but he could not remember. The Veteran stated that he had to be seen quickly because he had a death in his family and was sent home. The Veteran indicated that he was given a medical discharge. The Veteran stated that a month to three months prior to the hearing he found out he had arthritis. The Veteran's spouse testified that he needed her help doing chores around their home. See May 2021 Hearing Transcript. In October 2021, the Veteran was afforded a VA shoulder and arm examination. The Veteran reported onset of left shoulder pain during physical training during service. The Veteran indicated onset was 1978 and that the condition had progressed/ worsened. The examiner noted that the enlistment examination in 1978 noted preexisting left shoulder surgery prior to service for left shoulder dislocation and fracture prior to service. The examiner found it was less likely than not that the Veteran's left shoulder condition was caused or incurred by service. The examiner also indicated that the condition that clearly and unmistakably occurred prior to service was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner found that potentially relevant evidence had been reviewed and the enlistment exam noted that service records from 11/10/1977 indicated that the Veteran had left shoulder surgery prior to active-duty service for fracture and dislocation of left shoulder prior to service requiring surgical pin. The examiner stated that there was no evidence of injury or aggravation of the left shoulder during active duty found in the service treatment records from 06/07/1978-08/24/1978. The examiner found that there was not enough evidence to support that the left shoulder condition was caused or aggravated by service. The examiner stated that an X-ray from 2012 many years after service indicated findings of left shoulder arthrodesis from the prior left shoulder surgery that occurred prior to service. In January 2022, the Veteran was afforded another VA shoulder and arm examination. The examiner reviewed the claims file; considered the subjective accounts and conducted an evaluation. The examiner found that it was less likely than not that the Veteran's left shoulder condition occurred in-service. The examiner stated that there was no chronic diagnosis made for a left shoulder condition while in-service and that the Veteran's symptoms were subjective only. The examiner indicated that documentation noted that the Veteran fractured his left humerus in 1976 and required surgical pinning and his entrance exam dated 11/10/1977 noted "fracture, dislocation left shoulder, surgical repair. The examiner also stated that the available medical records did not note medical evaluations, treatment, or a diagnosis for a left shoulder condition while on active duty. Furthermore, the examiner stated that there was no objective medical evidence noted in the available medical records to support or confirm a link between the Veteran's diagnosis of left shoulder degenerative arthritis and the Veteran's time on active duty, and that a nexus had not been established. In addition, the examiner found that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The rationale was that the available documentation listed the Veteran's active-duty dates as 06/07/1978 08/24/1978 and the available medical records did not note medical evaluations, treatment, or diagnosis for a left shoulder condition while on active duty. The examiner reiterated that the Veteran reported he "never sought medical attention for his left shoulder pain." The examiner also indicated that there was a lack of sufficient objective medical evidence noted in the medical records to confirm or support a conclusion of permanent aggravation beyond normal progression and a thorough review of medical literature failed to support a conclusion that the Veteran's left shoulder condition was aggravated by service, as the medical records did not note medical evaluations, treatment, or a diagnosis for a left shoulder condition while on active duty. There was no nexus to service. The Board finds this VA examination is entitled to significant probative weight. VA and private treatment records have been associated with the claims file and note ongoing treatment for the left shoulder. These treatment records do not contradict the VA examination and are absent indications between the Veteran's current left shoulder disabilities an in-service disease or injury or aggravation of the Veteran's left shoulder. After consideration of all the evidence of record the Board finds that the weight of the evidence is against finding that service connection for a left shoulder disability is warranted. The Board concludes that service connection is not warranted as the Veteran's current left shoulder disability was not incurred in or caused by and in-service injury, event or illness and his current left shoulder disability was clearly and unmistakably not aggravated by his time in service. The Veteran's lay statements regarding his current symptoms and ongoing symptomology are credible. However, his report of an injury during field training and a continuity of symptoms since service are not credible. The Veteran was seen on one occasion very late in his training for low back pain. This would have been an opportunity to report a shoulder injury or aggravation but he did not do so. He then declined a discharge examination, another opportunity to report chronic shoulder pain. He received a discharge for failure to pass communications skills tests, not for physical or medical reasons, and there was no mention of early discharge for family emergencies. Private medical records in 2011 contain reports of more recent onset of shoulder pain, contrary to the Veteran's reports of pain and loss of function since service. The Veteran does not have the training or expertise to offer a medical opinion linking a current disability and to provide an opinion on aggravation and as such the Veteran is not competent to provide a nexus opinion in this case. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). The Board finds that the medical evidence is more probative and credible than the lay opinions of record. In particular the Board finds that the service personnel and treatment records and the VA opinion of January 2022 is entitled to significant probative weight. The July 2022 VA opinion noted that the Veteran's left shoulder disability was less likely than not that the Veteran's left shoulder condition occurred in-service. The examiner stated that there was no chronic diagnosis made for a left shoulder condition while in-service and that the Veteran's symptoms were subjective only. The examiner indicated that documentation noted that the Veteran fractured his left humerus in 1976 and required surgical pinning and his entrance exam dated 11/10/1977 noted "fracture, dislocation left shoulder, surgical repair. The examiner also found that the claimed condition, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The rationale was that the available documentation listed the Veteran's active-duty dates as 06/07/1978 08/24/1978 and the available medical records did not note medical evaluations, treatment, or diagnosis for a left shoulder condition while on active duty. The examiner further indicated that the Veteran reported he "never sought medical attention for his left shoulder pain". The Board finds that direct service connection is not warranted as the Veteran's left shoulder disability is not caused by service. The Board notes STRs note no separation examination was conducted, but the Veteran's health did not change, and there were no further STR's that contained evidence of a left shoulder condition occurred in-service or of any reports regarding the left shoulder. In addition, the Board finds that the Veteran's current left shoulder disability was clearly and unmistakably not aggravated or worsened by his service. The Board has considered the Veteran's lay statements however, the Board gives more probative weight to the competent medical evidence especially the January 2022 VA opinion. As such the Board finds that the Veteran's current left shoulder disability is less likely than not related to active service, and there was no aggravation or worsening of his pre-existing left shoulder disability during service. As such the Board finds that service connection is not warranted. As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and service connection for a left shoulder disability is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Long-Ellis, 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.