Citation Nr: 22019657 Decision Date: 04/02/22 Archive Date: 04/02/22 DOCKET NO. 17-46 531A DATE: April 2, 2022 ORDER Service connection for right shoulder degenerative joint disease is denied. FINDINGS OF FACT 1. Right shoulder degenerative joint disease was not shown as chronic in service and did not manifest to a compensable degree within the applicable presumptive period; continuity of symptomatology is not established; and the disability is not otherwise etiologically related to an in-service injury or disease. 2. Steroid injections for service-connected knee and back disabilities did not cause or aggravate the Veteran's obesity. 3. The Veteran's obesity did not cause or aggravate right shoulder degenerative joint disease. CONCLUSION OF LAW The criteria for service connection for right shoulder degenerative joint disease have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1961 to May 1965. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal has been remanded on four occasions, most recently in December 2021. The development has been completed and the appeal has been returned to the Board for further appellate review. As for VA's duties to assist, the Veteran expressed displeasure that VA was "taking the word of some would-be interns of a real doctor." July 2019 opinion rendered by a Nurse Practitioner. The September 2021 VA opinion was rendered by a Certified Medical Examiner, Family Nurse Practitioner, and Nurse Practitioner in General Practice. There is no indication that they are interns. VA satisfies its duty to assist when it provides a medical examination performed by a person who is qualified through education, training, or experience to offer medical diagnosis, statements, or opinions, whether that is a doctor, nurse practitioner, or physician's assistant. Their credentials indicate they are qualified to render the VA medical opinion. The January 2021 opinion was rendered by a medical doctor (M.D.). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Service connection for right shoulder degenerative joint disease The Veteran asserts that his current right shoulder degenerative joint disease is related to an in-service injury in 1963 in which he fell. See May 2018 Board hearing testimony. He asserts that he had pain in his shoulder due to the injury, and the disability got progressively worse over the years. He also testified that he started taking a prescription medication for his shoulder after separation and that he began having steroid injections in his shoulder in the 1970s. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Certain chronic diseases will be presumed related to service, absent an intercurrent cause, if they were shown as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service (or within an applicable presumptive period) with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). For the showing of a 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." Continuity of symptomatology after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic as per 38 C.F.R. § 3.309(a)). The Veteran has a current diagnosis of right shoulder degenerative joint disease (DJD) as evidenced by the May 2013 VA examination. DJD is another name for arthritis. Arthritis is an enumerated condition under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, the disability was not shown as chronic in service, did not manifest to a compensable degree within a presumptive period, and was not noted in service with attributable continuity of symptomatology. Service treatment records show that in March 1963, the Veteran reported falling and injuring his right shoulder. A March 1963 radiograph was taken of the Veteran's right shoulder after he fell on it. The X-ray was normal. In the May 1965 Report of Medical History at separation, the Veteran denied arthritis and a painful or trick shoulder. The May 1965 separation examination showed normal upper extremities. A January 2004 Social Security Administration disability benefits examination showed the Veteran reporting shoulder pain. The examination was largely negative. The history showed the Veteran worked for 36 years as a welder and a pipe fitter. Private treatment records from October 1987 to November 2007 show consistent treatment for the Veteran's knee and back pains that were diagnosed eventually as arthritis. The records also show treatment for other conditions. Although in October 1996, during treatment for neck pain, the Veteran reported the neck pain seemed to radiate into both arms and occasionally caused a numb sensation up and down his arms. This record describes the pain originating from the neck, rather than the shoulder. In fact, shoulder tests performed at the time were normal. In August 2003, he reported right elbow tenderness. It is reasonable to conclude that if the Veteran were experiencing shoulder symptoms, he would have reported them at the same appointments where he reported pain in his other joints, including when he reported symptoms in the same extremity, such as when he reported right elbow pain. The May 2013 VA examination is the first instance in which the Veteran was diagnosed with right shoulder degenerative joint disease. At that examination, the Veteran reported the injury to his shoulder (reported as left shoulder) from lifting and carrying heavy gear in the military during training. He reported that his right shoulder has become worse over time. On this record, the Board finds that the onset of right shoulder pain based on the most credible evidence is 2004, which is decades after service, and outside the presumptive period. While the Veteran is competent to report having experienced symptoms of shoulder pain in service and consistently since service, the Board finds the reports that these reports are not sufficiently credible. The Veteran's reports are contradicted by the Report of Medical History and the medical examination at separation. Those records are written documents recording the Veteran's symptoms and conditions at the time under review (i.e. during service). The Veteran's reports of pain continuously since service were made decades after service in the context of a claim for compensation. Thus, the written service treatment records are persuasively more reliable than the Veteran's later statements. Service connection for right shoulder DJD may still be granted on a direct basis; however, the evidence persuasively weighs against a finding that a medical nexus exists between the Veteran's disability and an in-service injury, event or disease. 38 U.S.C. §§ 1110, 1131; Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303. As explained in the December 2021 remand, the Board finds the Veteran's assertion that he received steroid injections in his right shoulder for the past 30 years to be not credible. The evidence shows that while he did receive injections, they were not for his right shoulder. Private medical records from 1998 through 2007 note that he received periodic injections in his left and right lower extremities and his back, but not his right shoulder. A March 1998 record from Dr. D. H. noted a Celestone injection for the Veteran's back. June 2000, June 2001, June 2002, March 2004, June 2004, July 2004, January 2005, and June 2005 treatment reports from Dr. D. H. showed a prescription for Kenalog injections for knee pain. In March 2004, he reported to Dr. D. H. that NSAIDs were not working and that he wanted to have injections. In August 2009, Dr. A. U. prescribed Cortisone injections for the Veteran's knees. The medical evidence showing what body part the injections were for is more probative than the Veteran's statement that he received steroid injections for his right shoulder. His lay assertion is directly contradicted by the record, which states the injections were in his lower extremities and back. Therefore, as previously explained in the December 2021, his assertion regarding injections in his right shoulder is not credible. The September 2021 VA medical opinion concluded that the Veteran's right shoulder disability was not related to an in-service injury, event, or disease. The rationale was the normal pathology and diagnosis of acute sprain of the head of the bicep region in 1963. The rationale also pointed to the normal findings of upper extremities on the separation examination. The examiner noted there was no other sequela to suggest chronicity of the right shoulder within the service period. The rationale also included the fact that the Veteran injured himself in January 2001 after lifting a 55-gallon drum at work. He strained his lower back, but pain in the shoulder was not reported. The VA medical opinion refutes an August 2014 private medical opinion by Dr. T. D. "due to there being no sequela, repetitive reported complaints or patterns of chronicity." The opinion also pointed to the Veteran's post service occupation working in a print shop where his duties included lifting bags up to 70 pounds on a regular basis. The examiner concluded that the Veteran's right shoulder DJD is due to natural aging and occupational duties post service. The Board finds that the September 2021 VA medical opinion is probative. The VA examiner reviewed the evidence of record and considered the Veteran's actual history and statements. The examiner rendered an opinion with reasoned medical explanations and analysis. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Therefore, the Board finds that the Veteran has been provided an adequate medical examination in conjunction with his claim. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The September 2021 medical opinion also substantially complies with the Board remand directives to consider the Veteran's lay statements and to consider the Veteran's contention that he got steroid shots for the right shoulder problem every six months at a VA medical facility for approximately 30 years after service. In this case, the VA examiner reviewed the entire record and found no sequela of the in-service injury to suggest chronicity. This is consistent with a January 2013 VA treatment record noting that the Veteran had been getting steroid injections to the hip and knee for DJD since 1980 and the last dose was 5 years ago. The January 2013 VA treatment record is strong evidence that the steroid injections were not performed on the shoulder. This is bolstered by the lack of complaints or treatment for right shoulder pain in treatment records from October 1987 until the first report of pain not associated with the neck in 2004. The Board's finding that the statements regarding injections in the right shoulder are not credible are discussed in more detail above. Accordingly, there has been substantial compliance with the Board remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also considered private medical opinions. The August 2014 private medical opinion stated that the Veteran injured his shoulder in a fall in service in March 1963. The physician rendering the opinion stated that, although the Veteran is morbidly obese and this has had a significant impact on some of his musculoskeletal problems, his repeated injuries while he was on active duty in the Air Force may have played some role in his development of degenerative arthritis. The Board finds this opinion is not probative because the language is speculative (i.e. "may have"). Bloom v. West, 12 Vet. App. 185, 186-87 (1999). A May 2018 private medical opinion found the Veteran's pain (including neck and shoulder pain) is most likely due to chronic back pain as the Veteran has a history of degenerative disc disease of the lumbar and cervical spine. The physician provided no further explanation. The Board does not give this opinion any probative weight because there is no rationale. Further, it does not consider whether the Veteran's shoulder pain was caused by the right shoulder DJD that was diagnosed prior to the treatment rendered by the clinician rendering the opinion. While the Veteran believes his right shoulder disability is related to an in-service injury, event, or disease, including the in-service fall and the physical demands of service, he is not competent to provide a nexus opinion in this case. Specifically, the question of causation of DJD involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives significantly more probative weight to the competent medical evidence, and it is persuasively against the claim. Service connection for a right shoulder disability on a direct basis is not warranted. The medical record shows that the Veteran has obesity. The Board has considered whether the steroid injections he received made him gain weight, and whether this obesity was an intermediate step between his service-connected left knee, right knee, and back disabilities, and his right shoulder disability. Obesity may act as an "intermediate step" between a service-connected disability and a current disability that may be service-connected on a secondary basis under 38 C.F.R. § 3.310(a). In this case, the record shows that the Veteran received steroid injections for his now service-connected disabilities for many years, and that he believes that made him gain weight. Pursuant to the Board's December 2021 remand, VA obtained a medical opinion in January 2022 regarding the obesity issue. The evaluating clinician opined that the steroid injections the Veteran received periodically from 1998 through 2009 for service-connected knee and back disabilities neither caused nor aggravated his obesity. The rationale was that the dosage/amount of steroid used in the Veteran's case, the very limited amount of systemic absorption, and the interval for dosing would not predispose an individual to weight gain at all and certainly not obesity. Systemic effects do not occur at the typical dosages and intervals of administration. Joint spaces, including injections for the spine, are administered into avascular spaces, hence there is little or no systemic absorption. The mechanism by which systemic steroids may cause weight gain is due to impairment of glucose metabolism, which does not occur with joint injections. The clinician cited Wheeless' textbook of orthopedics to explain that this is established orthopedic knowledge and practice. The clinician also opined that obesity would play no role in the Veteran's right shoulder degenerative disease. He reasoned that there is no anatomic or physiologic mechanism by which obesity can cause or aggravate degenerative joint disease of the shoulder. The examiner explained that the shoulder condition would have arisen regardless of obesity. There is no evidence of aggravation for the Veteran's right shoulder DJD beyond its natural course due to any cause. The natural course of DJD is progression, often requiring medical intervention, injections or surgical intervention. The Board finds this opinion is highly persuasive. It is very detailed in its reasoning and analysis, was based on a review of the record, considered the Veteran's history and statements, and cites to medical authority. Thus, the opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Accordingly, there has been substantial compliance with the December 2021 Board remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Service connection based on obesity as an intermediate step is not warratned. For all the foregoing reasons, service connection for right shoulder DJD is not warranted. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Rocktashel, 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.