Citation Nr: 23057794 Decision Date: 10/25/23 Archive Date: 10/25/23 DOCKET NO. 20-18 956 DATE: October 25, 2023 ORDER Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a left shoulder disability is denied. FINDINGS OF FACT 1. The evidence persuasively weighs against finding that the Veteran's right shoulder disability, to include arthritis, had its onset during active duty service or within one year after his separation, or is otherwise due to an in-service injury, event, or illness. 2. The evidence persuasively weighs against finding that the Veteran's left shoulder disability had its onset during service or is otherwise due to an in-service injury, event, or illness. CONCLUSIONS OF LAW 1. The criteria for service connection for a right 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(a). 2. 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. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1956 to September 1962. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in October 2017. In May 2022, the Veteran withdrew his prior request for a hearing. These matters were previously before the Board in July 2022, December 2022, and June 2023, and they were remanded each time for further development. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) 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). Certain chronic diseases, including arthritis, 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, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013). When evaluating the evidence of record, the Board must assess the credibility and probative value of the evidence, and, provided that it offers an adequate statement of reasons or bases, the Board may favor one medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wood v. Derwinski, 1 Vet. App. 190 (1991). In adjudicating these claims, the Board must assess the competence and credibility of the claimant. Washington v. Nicholson, 19?Vet. App.?362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno?v. Brown,?6?Vet. App.?465, 469 (1994);?see also?Falzone?v. Brown,?8?Vet. App.?398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet).? A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See Lynch v. McDonough, 21 F.4th 776, 781 (Fed. Cir. 2021). If "the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise) the claimant receives the benefit of the doubt." Id.? 1. Entitlement to service connection for a right shoulder disability 2. Entitlement to service connection for a left shoulder disability The Veteran has claimed entitlement to service connection for disabilities of the right and left shoulders. He asserts that his shoulder disabilities had their onset during service or are due to in-service injuries and events, including being pushed down a flight of stairs and performing rigorous exercises. The Veteran's service treatment records are silent for diagnosis of, or treatment for, left or right shoulder problems. He denied shoulder problems in reports of medical history dated in October 1956, July 1959, and June 1960, and reports of medical examination from the same dates are silent for shoulder problems. Additionally, a December 1960 report of medical examination for promotion and the Veteran's August 1962 separation medical examination both contain no indication of shoulder problems. The Veteran's private medical treatment records contain an indication of right shoulder tendonitis in December 2014. The Veteran underwent a right shoulder X-ray in January 2015 and MRI in March 2015. Prior to December 2014, the Veteran's VA and private medical records do not indicate any shoulder disabilities. The Veteran submitted a statement in June 2017, in which he attributed his shoulder disabilities to his active duty service. He stated that he is like a retired football player with many pains, pulls, and difficulties due to service. He described in-service activities, including vigorous swimming exercises and an incident where he was kicked down a flight of steel stairs. He described back and neck pain and a "big hurt" after being kicked down the stairs but did not specify any shoulder pain after the incident. He described in-service shoulder pain in general terms, but he did not explicitly indicate shoulder pain after any specific injury or event. The Veteran also stated that there were no physicians on base for "non-threatening" issues, so most of the time servicemembers "sucked it up" when injured. The Veteran submitted another statement in June 2017. The opening paragraph indicates that it was written by his spouse, but the remainder of the statement appears to be from the Veteran's own first-person perspective. The statement indicates that he believes his joints were compromised by years of intensive running, pullups, forced marches, pushups, and leadership by example. The Veteran indicated that he was injured during a lacrosse game against the Air Force but did not provide further details or indicate the site of injury. The Veteran submitted a letter from R.C., D.C., dated in June 2018. Dr. C. indicated that he had treated the Veteran since October 2009, and that he has had complaints of bilateral shoulder pain which limits his ability to do overhead work or raise his arms to comb his hair without increased pain. He stated that the Veteran reported a history of upper extremity injuries. He also indicated that the Veteran reported being pushed down a flight of stairs, with subsequent low back pain. Dr. C. stated that the Veteran suffered multiple cumulative traumas to his shoulders throughout training and that he had pain during service but "toughed it out" without seeking medical treatment for his pain. Dr. C. opined that the Veteran's shoulder pain is more than 50 percent attributable to the multiple traumas incurred during the Veteran's active duty. The Veteran underwent a VA shoulder examination in August 2023, wherein diagnoses of left shoulder impingement syndrome and right shoulder labral tear, acromioclavicular joint osteoarthritis, and frozen shoulder syndrome. The examiner opined that the Veteran's left and right shoulder disabilities are less likely than not related to his active service. She indicated that the Veteran's service treatment records are silent for shoulder problems and that he did not seek treatment for shoulder problems for more than 40 years after his separation from active service. She stated that, while the Veteran and his spouse contend that his shoulder disabilities are due to traumatic events and repetitive swimming during service, there is insufficient evidence of a left or right shoulder disability during service or for more than 40 years after service. She stated that the Veteran's shoulder disabilities are more likely caused by advanced age and prolonged immobilization, rather than due to in-service events or injuries. After considering the evidence, the Board finds that service connection is not warranted for the Veteran's right and left shoulder disabilities. Although the evidence demonstrates the existence of present shoulder disabilities, and the Veteran has provided statements indicating in-service injuries, the evidence persuasively weighs against finding a nexus between the in-service injuries and current disabilities. The Veteran's service treatment records are silent for shoulder problems, and his medical records indicate that he did not seek treatment for shoulder issues until December 2014, over 40 years after his separation from service. As indicated by the August 2023 VA examiner, the Veteran's left and right shoulder disabilities are more likely due to his advanced age and prolonged immobilization, and they are less likely than not due to the Veteran's reported in-service injuries. The Veteran is competent to report his history and symptoms, but he has not indicated the medical knowledge and training necessary to establish a link between his current shoulder disabilities and service. See Barr v. Nicholson, 21 Vet. App. 303, 309 (2017). In denying service connection for the Veteran's shoulder disabilities, the Board assigns greater weight to the August 2023 VA medical opinion than to Dr. C.'s June 2018 medical opinion. Although Dr. C. has personally treated the Veteran since October 2009, he did not indicate a review of the Veteran's service treatment records or other medical records from prior to the date he began treating the Veteran. Instead, Dr. C. appears to have based his opinion primarily on the Veteran's verbal report of his history. The VA medical opinion, on the other hand, is based on in-person examination and review of all lay and medical evidence available. In addition, the VA examiner provided a more detailed and adequate rationale, while Dr. C. merely described the Veteran's reports and gave a conclusory statement that his shoulder disabilities are related to in-service injuries. Because Dr. C. did not indicate review of all relevant records and provided a conclusory opinion without a supportive rationale, the Board assigns greater weight to the VA medical opinion than to Dr. C.'s opinion. See Owens, 7 Vet. App. at 433; Wood, 1 Vet. App. at 190. Therefore, the Board finds that a nexus has not been established, and service connection is not warranted for the Veteran's left and right shoulder disabilities. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. The Board also finds that service connection is not warranted on a presumptive basis for the Veteran's right shoulder arthritis, which is a chronic disease. See 38 C.F.R. § 3.309(a). As indicated above, the Veteran's service treatment records are silent for right shoulder arthritis or other problems, and he was not diagnosed with right shoulder arthritis until more than 40 years after his active duty service. Therefore, as the evidence persuasively weighs against finding that his right shoulder arthritis manifested within one year of his active duty service, service connection on a presumptive basis is not warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309(a). (Continued on the next page) ? In denying the claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the evidence persuasively weighs against the claims, that doctrine is not applicable. 38 U.S.C. § 5107; see Lynch, 21 F.4th at 781; 38 C.F.R. § 3.102. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt 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.