Citation Nr: 23006458 Decision Date: 02/01/23 Archive Date: 02/01/23 DOCKET NO. 18-39 472 DATE: February 1, 2023 ORDER Entitlement to service connection for a right shoulder disability is denied. FINDING OF FACT The evidence of record persuasively weighs against finding that the Veteran's right shoulder disability began during active service or is otherwise related to an in-service injury or disease. CONCLUSION OF LAW A right shoulder disability was not incurred in or aggravated by the Veteran's active military service. 38 U.S.C. §§ 1110, 1116(f), 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1988 to November 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a June 2019 Board decision, the claim was remanded for further evidentiary development. A review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A supplemental statement of the case (SSOC) was issued in January 2021. The Veteran's VA claims file has been returned to the Board for further appellate proceedings. The June 2019 Board decision also remanded the claim of entitlement to service connection for a lumbar spine disability. In a December 2020 rating decision, the RO granted service connection for lumbar strain and assigned a 10 percent initial rating from February 15, 2013 and 20 percent from October 20, 2020. That matter has accordingly been resolved. See Grantham v. Brown, 114 F.3d 1136 (Fed. Cir. 1997) (where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of "downstream" issues such as the compensation level assigned for the disability or the effective date of service connection). 1. Entitlement to service connection for a right shoulder disability. Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty, or from or aggravation of a pre-existing injury suffered or disease contracted in line of duty. See 38 C.F.R. §§ 1110, 1131; 38 C.F.R. § 3.303. Diseases diagnosed after discharge may still be service connected when all the evidence, including pertinent service records, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection for any particular disability, there must be evidence of a current disability; evidence of in-service occurrence or aggravation of a disease or injury; and medical evidence, or in certain circumstances, lay evidence, of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of observable symptoms that are in his or her personal knowledge. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Id. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In this matter, the Veteran asserts entitlement to service connection for a right shoulder disability, which was incurred during his active duty service. See, e.g., the Veteran's statement dated September 2013. Specifically, he contends that he suffered from a right shoulder injury while he was stationed in Saudi Arabia, which has continued to the present day. Id.; see also the Veteran's notice of disagreement (NOD) dated April 2014. For the reasons set forth below, the Board finds that service connection is not warranted for the claimed right shoulder disability. As to the first element of service connection, current diagnosis, VA examination reports dated in December 2013 and October 2020 confirmed diagnoses of right shoulder strain and healed fracture of the right distal clavicle. Thus, the first element of service connection is met. With respect to the second element, in-service incurrence or injury, service treatment records (STRs) show that the Veteran was treated for complaints of right shoulder pain in March 1988, following a fall injury to the area. The treatment provider indicated that no deformity was shown. The Veteran was diagnosed with a muscle strain. In April 1992, the Veteran complained of upper back pain with tenderness noted at the supraspinatus and trapezius muscles. He was diagnosed with a right supraspinatus strain. Physical examination of the Veteran's shoulders was normal at separation. See the separation examination dated October 1993. Moreover, on his October 1993 Report of Medical History at separation, the Veteran denied having or ever having had "painful or 'trick' shoulder or elbow." VA treatment records dated in May 2013 documented the Veteran's complaint of shoulder pain. In a December 2013 VA examination report, the examiner noted the Veteran's report that he began experiencing right shoulder pain in approximately 1992 during Desert Storm when lifting sandbags. He was treated with Motrin and restricted to his quarters for three days; he indicated that he was never seen again in service for his shoulder disability. The Veteran further reported that he has not been seen by a provider for right shoulder complaints since his in-service visit. The Veteran currently reports right shoulder pain occurring approximately one to two times per month when he does physical labor at work. The examiner diagnosed the Veteran with acute right shoulder strain and old, healed fracture of the right distal clavicle. The examiner indicated that the diagnosed right shoulder disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The examiner explained, "[p]atient has not been seen by a provider since active duty service for a right shoulder complaint and no mention of 'shoulder pain' on new patient visit [at] VA [in] December 2012. In addition, patient marked 'no' to painful or trick shoulder on separation exam." The examiner further noted, "[p]atient fails to establish a chronicity of right shoulder condition and no chronic or disability right shoulder condition found." In the April 2014 NOD, the Veteran indicated that "[t]he reason that there is no evidence in my service records is that this incident took place in Saudi Arabia during Operation Desert Shield." He stated that he did not seek treatment for right shoulder problems in the years following service because he did not have health insurance. See the NOD dated April 2014. He reported that he was diagnosed with a broken collar bone in the years after service, which must have been incurred during service. Id. Pursuant to the June 2019 Board Remand, the Veteran was afforded a VA examination in October 2020 at which time the examiner confirmed diagnoses of right shoulder strain and old, healed fracture of distal clavicle. In a separate opinion, the October 2020 VA examiner opined that "[t]he Veteran's right shoulder strain is not at least as likely as not due to or began in service or is otherwise related to disease, an event, or an injury in service." The examiner explained, Review of the Veteran's records show on encounter for a complaint of upper back pain (30 April 1992). Review of the record/encounter shows that the injury was in the deltoid or supraspinatus area; however, the Veteran had full ROM. On his chapter/separation examination dated October 1993 the Veteran did not report or suggest problems with his right shoulder. Although the Veteran reports problems with his right shoulder during his career, the Veteran was a maintainer, and his job would cause pain at times due to the repetitive nature of his occupation. Regardless, pain is not always a sign of pathology; pain also represents the stressing of joints and/or ligaments and/or tendons, and can signal a potential or future growth due to said stressing (example: Pain with weight-lifting). Even the one incident in 1992 was of un-concerning character; the lack of follow-up also supports this as a transient, self-limiting injury. It is recognized that the Veteran's job as mechanic exposed him to significant opportunities to incur a chronic injury pattern; however, the lack of significant pathology (both in-service and currently), lack of continuity of care, and the significantly common nature of shoulder strain does not support the Veteran's current right shoulder complaints/condition as being due to any event in service. As a separate note, the past clavicular fracture is not likely to have been due to any event in service, and is considered asymptomatic and an incidental finding. It is noted that the mere lack of continuity of care is not a reason for exclusion or negative opinion; however, the Veteran did not claim continued pain in right shoulder upon separating from service in 1993, nor in 2012 when he sought care in the VA for the first time since separation. He noted that he did not have any care in the interim. Another VA medical opinion was obtained in January 2021 to specifically address the diagnosed healed right distal clavicle fracture. The examiner determined that the claimed right shoulder disability was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained, I have reviewed the competent medical evidence contained in the service treatment records. The Veteran had no right shoulder complaints when he entered the military or when he separated from the military. While in the military he had transient right shoulder pain in March 1988 with no subsequent documentation of treatment for that problem. There was no documentation of a trauma that would have resulted in a distal clavicle fracture. Subtle fracture with been painful and resulted in limited capabilities as well as medical attention. Lacking such documentation, it is less likely than not the Veteran's right shoulder strain and healed clavicle fracture were incurred in or caused by any specific in-service illness, event or injury. The January 2021 VA examiner further opined that it is "less likely that the Veteran's complaints relative to the right shoulder area are related to his healed the distal clavicle fracture or could reasonably be a manifestation of that fracture." The examiner continued, "[t]he healed fracture is not noted to be a source of pain. There is no indication of a malunion. There is no indication that the fracture was associated with any other biomechanical abnormalities." The examiner further noted, "[t]here is no documentation of a continuum of care following an event that could have resulted in the clavicle fracture. Thus, the healed clavicle fracture is not felt to be related to any shoulder pain." When assessing the probative value of a medical opinion, the access to claims files and the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000). To this end, the Board finds that the October 2020 and January 2021 VA medical opinions were based on a review of the record, including the Veteran's statements, medical history and clinical findings. The examiners explained the reasons for their conclusions based on an accurate characterization of the evidence of record. Significantly, the October 2022 and January 2021 VA examiners explicitly considered the assertions of the Veteran concerning the onset and progression of the right shoulder symptoms, as well as his description of his in-service injury in rendering the negative nexus opinions. The October 2022 and January 2021 VA opinions sufficiently inform the Board of the clinicians' judgment on the relevant medical questions and the "essential rationale" for their opinions. Monzingo v. Shinseki, 26 Vet. App. 97, 105-7 (2012) (the fact that the rationale provided by an examiner "did not explicitly lay out the examiner's journey from the facts to a conclusion," did not render the examination inadequate); Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that VA examiners do not have a reasons or bases requirement). Where a medical opinion is lacking in detail, "the Board is permitted to draw inferences based on the overall report so long as the inference does not result in a medical determination." Acevedo, 25 Vet. App. at 294. Moreover, medical reports must be read as a whole and in the context of the evidence of record. Id. The Board therefore places significant weight on the cumulative findings expressed in the October 2020 and January 2021 VA medical opinions. See Nieves-Rodriguez, supra; see also Bloom v. West, 12 Vet. App. 185, 187 (1999) (the probative value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion"). Significantly, after reviewing the Veteran's medical history, the October 2020 and January 2021 examiners concluded that the Veteran's right shoulder disability, to include the healed distal clavicle fracture, are not etiologically related to his military service to include his reports of in-service injury and continuing right shoulder symptoms. Accordingly, the Board finds that the competent medical evidence demonstrating the absence of nexus between the claimed disability and the Veteran's active duty service outweighs any medical evidence suggestive of a nexus. The Board has carefully considered the Veteran's contentions that his right shoulder disability was incurred in or aggravated by his active duty service. To this end, the Board recognizes that lay witnesses are competent to opine as to some matters of diagnosis and etiology, and the Board must determine on a case by case basis whether a veteran's particular disability is the type of disability for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, the Veteran's assertions as to etiology concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Questions of competency notwithstanding, the statements of the Veteran regarding the onset and etiology of the right shoulder disability are contradicted by both the contemporaneous clinical records as well as the October 2020 and January 2021 VA examiners who specifically considered these contentions in rendering the negative opinions. The Board finds the specific, reasoned findings of the trained health care providers who conducted the October 2020 and January 2021 VA opinions to be of greater probative weight than the more general lay assertions of the Veteran. The Board has considered that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence corroborating those statements. Buchanan, supra. In this case, the Veteran's recollections of continuous right shoulder symptoms since his active duty service are outweighed by the contemporaneous clinical evidence. The post-service clinical evidence contains no indication that symptoms were present immediately following service and continuing thereafter. The Board assigns more probative weight to the contemporaneous clinical evidence than to remote recollections made in the context of a claim for monetary benefits. The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran's favor when the evidence is in relative equipoise. Considering the record, including STRs, post-service medical evidence, the October 2020 and January 2021 VA medical opinions, and lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater evidentiary weight. In conclusion, as the evidence is not in approximate balance and is persuasively against the Veteran's claim, the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). The appeal is denied. Amanda G. Alderman Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. K. Buckley, 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.