Citation Nr: 23048321 Decision Date: 09/01/23 Archive Date: 09/01/23 DOCKET NO. 15-19 920 DATE: September 1, 2023 ORDER Service connection for a left shoulder disability, including as secondary to service-connected lumbar spine degenerative arthritis with intervertebral disc syndrome and radiculopathy (back disability), is denied. FINDING OF FACT The Veteran's left shoulder disability is not secondary to service-connected back disability and is not otherwise related to an in-service injury. CONCLUSION OF LAW The criteria for service connection for a left shoulder disability due to service or a service-connected disability are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to February 1968. This case is before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter for further development in April 2018, August 2020, and May 2021. In a December 2021 decision, the Board denied the claim of service connection for a left shoulder disability. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court), which vacated the Board's December 2021 decision in a November 2022 Order. In an accompanying Joint Motion for Remand (JMR), the parties agreed that the Board failed to provide an adequate statement of reasons or bases for its findings. Specifically, the parties agreed that the Board erred when it did not ensure that VA satisfied its duty to assist in obtaining treatment records for treatment VA authorized and performed at non-VA facilities, including records from an MRI and left shoulder surgery in 2020. The Board remanded this case for further development in March 2023 to address the deficiencies noted in the JMR prior to readjudicating the claim. The 2020 MRI and left shoulder surgery records were associated with the claim's file in August 2022 and June 2023. As the requested development has been completed, no other action is required to comply with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has not identified any additional outstanding evidence that could be obtained to substantiate the claim. VA has complied with its duty to notify and assist in developing this claim. Hence, no further notice or assistance is required to fulfill that duty. See 38 U.S.C. § 5103A(a); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection Service connection will be granted for a current disability that resulted from an injury, disease, or aggravation while in active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires (1) a present disability, (2) in-service incurrence or aggravation of a disease or injury, and (3) a nexus between the present disability and the in-service incurrence or aggravation of a disease or injury. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may alternatively be granted on a secondary basis for a disability that is proximately due to, the result of (caused), or worsened beyond its natural progression (aggravated) by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc); 38 C.F.R. § 3.310. The Veteran is competent to report symptoms and experiences he can observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). VA must give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed Cir. 2009). The probative value attributed to a VA or private treatment provider's medical opinion to support service connection depends on factors such as thoroughness, degree of detail, and whether there was a complete review of the veteran's claims file. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). A medical opinion must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions. See Stefl v. Nicholson, 21?Vet. App.?120, 124 (2007). Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions. Nieves-Rodriguez v. Peake, 22?Vet. App.?295, 304 (2008). The absence of treatment shown within service treatment records is an insufficient rationale for a negative nexus opinion. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006). A VA examiner's failure to consider the veteran's testimony when formulating his or her opinion renders that opinion inadequate. Miller v. Wilkie, 32?Vet. App.?249, 257 (2020). A medical opinion is not inadequate merely because it is inconclusive. Stefl, 21 Vet. App. at 124. "An examiner's conclusion that a diagnosis or etiology opinion is not possible without resort to speculation is a medical conclusion just as much as a firm diagnosis or a conclusive opinion." Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). But if examiners are unable to render definitive opinions on an issue, they must explain the reason for that inability. Id. at 390-92. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990); 38 C.F.R. § 3.102. Entitlement to service connection for a left shoulder disability. The Veteran contends that his left shoulder disability is directly the result of service or is secondary to his service-connected back disability. The record contains a competent diagnosis of a left shoulder disability; accordingly, competent evidence of a current disability is found. August 25, 2021, C&P Exam. Service treatment records are silent for any evidence of a left shoulder disability or injury during active duty. At his service entrance medical examination in December 1965, the Veteran denied having a bone, joint, or other deformity or a painful or "trick" shoulder or elbow. In 1961, he reported a prior back injury that required him to wear a back brace. Medical records indicated that he was diagnosed with a back muscle sprain in February 1963. His service treatment records showed he never sought treatment for a shoulder or arm injury while on active duty. However, he did complain of several other ailments, including an eye injury, rash, ankle sprain, dizziness, and cough. During his December 1967 separation examination, he voiced no complaint of shoulder injuries, and the evaluation of his upper extremities was normal. The Veteran specifically denied having swollen or painful joints, any other bone or joint deformities, or a painful or "trick" shoulder. He declared to be "in good health" on his separation examination. See June 23, 2015, STR. Medical records for the period immediately after the Veteran's separation have been lost or destroyed, as the Veteran has also acknowledged. December 4, 2018, Correspondence. The earliest available records, dated May 1996, show that the Veteran had a "complete physical" and made no complaints concerning shoulder problems, though he was treated for hypertension. May 27, 2021, CAPRI. A letter from his private chiropractor stated that he had been treating the Veteran since August 1996 for reoccurring left shoulder pain. February 26, 2016, Medical Treatment Record - Non-Government Facility. The Veteran voiced no complaints about his shoulder or suffering pain during VA physicals over the next several years, though he reported multiple other issues. There are available chiropractic records in the claims file from November 2004, when he said to his chiropractor that there was pain in his left shoulder, particularly his left shoulder blade. The Veteran continued to describe left shoulder blade pain intermittently over the next half-dozen years, along with back and hip pain and occasional numbness in his extremities, until he began to report feeling better in June 2010. However, in 2012, he again reported numbness in his left shoulder, leg, and back. See March 9, 2016, Medical Treatment Record - Non-Government Facility. During a hearing before a Decision Review Officer in February 2017, the Veteran maintained that his left shoulder problem was linked to his back problem and asserted that his chiropractor had informed him of the connection. March 6, 2017, Hearing Testimony. During a November 2019 VA examination, the Veteran reported that his left shoulder pain had, like his back injury, first occurred in 1966 and had since progressively worsened. The examiner examined the Veteran's left shoulder and arm and concluded that the claimed shoulder and arm conditions were less likely than not incurred in or caused by a claimed in-service injury, event, or illness. The examiner explained that there was no evidence in the record that the Veteran complained about the conditions or that he was treated for the conditions while in service. See November 25, 2019, C&P Exam. An October 2020 VA examination revealed that the Veteran's lumbar spine degenerative arthritis had worsened. The examiner concluded that given the Veteran's history of back pain, before he entered service, it was plausible that basic training and other duties on active service had aggravated his degenerative disc disease. Thus, there was a nexus between his service and present injury. The examiner rejected, however, any secondary connection between the Veteran's lumbar spine condition and his shoulder pathology. The shoulder condition, he opined, was less likely than not proximately due to or the result of the service-connected condition because there was no direct causality between a lumbar spine condition and a shoulder pathology. The examiner opined that pathological shoulder condition symptoms were more likely to arise from a degenerative cervical disc syndrome than a lumbar process. See October 30, 2020, C&P Exam. A January 2020 magnetic resonance imaging (MRI) demonstrated that the Veteran's left shoulder disability manifests as a rotator cuff tendinosis without tear, superior labrum fraying of doubtful significance, and advanced acromioclavicular (AC) joint arthropathy. August 24, 2022, Medical Treatment Record - Non-Government Facility. In May 2020, the Veteran underwent a left reverse total shoulder arthroplasty, left biceps tenodesis, and left open rotator cuff repair of the subscap. June 12, 2023, Medical Treatment Record - Non-Government Facility. An August 2021 VA examiner again examined the Veteran and concluded that the Veteran's shoulder condition was less likely than not incurred in or caused by a claimed in-service injury, event, or illness. The examiner acknowledged that the Veteran's duties as an airframe and aircraft repairman were consistent with his claim of a shoulder injury. The examiner noted that no in-service medical records support a left shoulder injury or complaint during service. Therefore, he reasoned, he could not render a positive opinion that the Veteran's shoulder condition was related to an in-service injury without speculating about the injury that may have occurred - its type, extent, and severity. See August 25, 2021, C&P Exam. The examiner also echoed the October 2020 examiner's opinion that the Veteran's service-connected back disability with radiculopathy did not cause or aggravate the Veteran's left shoulder disability. The shoulder and lower back, the examiner explained, "are two separate areas of the body" such that they "do not have any relationship to each other when it comes to the Veteran's disabilities." The examiner observed that medical evidence does not support a conclusion that the Veteran's left shoulder issues could have been caused or aggravated by the back disability or bilateral lower extremity radiculopathy. See id. VA treatment records through April 2023 have been reviewed. While these demonstrate a progression of the left shoulder disability, these records do not contain any evidence relating the left shoulder disability to service or a service-connected disability. A VA examiner provided an addendum opinion in June 2023 reiterating the opinion that the Veteran's left shoulder disability is less likely than not proximately due to or the result of the Veteran's service-connected back disability. The examiner's rationale was that no medical literature supports the finding that lower back arthritis can lead to or aggravate a shoulder strain or injury or rotator cuff injury. The examiner noted that cervical spine arthritis could lead to injury in the shoulder due to proximity but not the lower back. See June 5, 2023, C&P Exam. A review of the record demonstrates that service connection for a left shoulder disability is not warranted. The November 2019, October 2020, August 2021, and June 2023 VA examiners agreed that the current left shoulder disability was less likely than not incurred in or caused by a claimed in-service injury, event, or illness. Although acknowledging the Veteran's lay contentions and his duties in service, since there was no report of a complaint or treatment of the shoulder during service, they explained, a direct service connection could not be drawn without, as the August 2021 examiner characterized it, "speculating" about the injury or condition. See Miller, 32?Vet. App.at 257. The August 2021 examiner described the inability, specifically noting that without any medical documentation of an injury or complaints during service, any medical opinion he provided would be speculative as to the causation of the current condition. See Jones, 23 Vet. App. at 390-92. Additionally, all four examiners concluded that it was less likely than not that the Veteran's shoulder disability was caused or aggravated by his service-connected back disability with radiculopathy. The October 2020, August 2021, and June 2023 examiners explained that the shoulder and lower spine are separate body areas. There is no medical basis to conclude there is a connection between lower spine arthritis and a shoulder strain or injury or rotator cuff injury. Injury to the shoulder was more likely to arise from a cervical spine disability than a lumbar spine disability, as the October 2020 and June 2023 examiners observed. November 2019, October 2020, August 2021, and June 2023 VA examiners' opinions have set forth the results of their comprehensive reviews of the claims file and the Veteran's lay reports. The examiners reviewed the applicable medical literature and provided clear and consistent rationales for their opinions. Hence, the Board finds their opinions highly probative and, taken in conjunction with each other and the lay and medical evidence of record, attaches significant weight to them on the matter of nexus between the Veteran's shoulder condition and his military service and between his shoulder condition and service-connected lumbar spine condition. See Nieves-Rodriguez, 22 Vet. App. at 304; Stefl, 21 Vet. App. at 124. The combined rationale was that the Veteran's current left shoulder disability is not related to service or a service-connected disability. The examiners' combined opinion is probative because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. See Nieves-Rodriguez, 22 Vet. App. at 304. Treatment records show the Veteran was not diagnosed with a left shoulder disability until 1996, nearly three decades after his separation from service. Indeed, the available records beginning in 1996 did not contain complaints about the left shoulder; however, the Veteran's chiropractor described providing treatment for left shoulder pain since that time. The chiropractor's treatment notes did not indicate that he believed the pain in his shoulder was related to previous injuries or the back problems he was suffering simultaneously. Indeed, The Veteran's service treatment records did not show he ever complained of shoulder difficulty or loss while on active duty. However, he complained of other injuries and disorders. The Veteran affirmed that he was in "good health" at his separation examination and specifically denied having a painful or "trick" shoulder. However, consideration has been given to the fact that the Veteran's medical records immediately after his discharge and through the next several decades are not part of the record, having been lost or destroyed. The Board has considered the Veteran's contention that his shoulder condition first manifested itself during his service and his explanation years later that he did not report it because "I wanted to get home to my family." His vague statements, however, do not detail the time or place of the injury, how it occurred, or the specific symptoms. His generalized assertion that he felt pain in his shoulder in 1966 does not establish a connection to objective diagnoses of a shoulder sprain and a torn rotator cuff decades later. See Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (rejecting the argument that a veteran's lay evidence that an event occurred must be accepted unless affirmative documentary evidence provides otherwise). "Rather, in all cases, a non-combat veteran's lay statements must be weighed against other evidence, including the absence of military records supporting the veteran's lay assertions." Id; compare 38 C.F.R. § 1154(b). Thus, while a medical opinion must not rely solely on the absence of in-service treatment or findings, Buchanan, 451 F.3d at 1336-37, the lack of contemporaneous medical evidence may be considered as one factor in assessing the credibility of lay statements. See id. Here, the Veteran's statements at service separation, specifically denying a painful or "trick" shoulder but reporting other issues, carry more credibility than his statements made many years after separation in connection with a claim for monetary benefits. The Veteran believes his left shoulder disability is proximately due to suffering shoulder and back pain almost immediately after his separation and having disc surgery in 1968 to relieve the pain of his service-connected back disability. In this case, the Veteran is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, requiring knowledge of anatomical relationships and complicated diagnostic medical testing interpretation. Therefore, it is outside the Veteran's competence in this case because the record does not show he has the skills or medical training to make such a determination. Jandreau, 492 F.3d at 1377 n.4; see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Consequently, without competent evidence supporting the Veteran's contention, the Board finds the Veteran's testimony not credible as he is not competent to provide a medical diagnosis, and his testimony contradicts the medical evidence of record. More probative weight is given to the competent medical evidence. Consequently, the Board gives more probative weight to the contemporaneous medical evidence of record and the VA examiners' opinions. Accordingly, the evidence is persuasively against the claim. As there is no approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable, and service connection for left shoulder disability is not warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53-56; 38 C.F.R. § 3.102. The claim is denied. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Costa, 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.