Citation Nr: 24006804 Decision Date: 02/07/24 Archive Date: 02/07/24 DOCKET NO. 19-01 762 DATE: February 7, 2024 ORDER Entitlement to service connection for a left shoulder disability is denied. FINDING OF FACT The Veteran's left shoulder disability is not otherwise etiologically related to an in-service injury or disease. CONCLUSION OF LAW The criteria for service connection for a left shoulder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably from February 1989 to November 2000. This matter comes before the Board of Veterans' Appeals (Board) from a May 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In an April 2022 Board hearing, the Veteran testified before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is of record. In a March 2023 decision, the Board remanded this claim for additional development. SERVICE CONNECTION Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Additionally, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Alternatively, when a disease at 38 C.F.R. § 3.309 (a) is not shown to be chronic during service or the one-year presumptive period, service connection may also be established by showing continuity of symptomatology after service. See 38 C.F.R. § 3.303 (b). The use of continuity of symptoms to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Arthritis is considered such a chronic disease and falls within the scope of 38 C.F.R. § 3.309 (a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to service connection for a left shoulder disability The Veteran contends that his left shoulder disability is due to service. He contends that he injured his shoulder while serving in Germany in 1996. During his April 2022 hearing, he testified that he sought in-service treatment for his shoulder on multiple occasions following his initial injury. He indicated that he began noticing symptoms in the right shoulder a year and a half after service and the pain has continued to date. The Veteran has a diagnosis of left shoulder rotator cuff tendonitis. See July 2023 VA Examination. The first element of service connection, a current disability, has been met. The Veteran's service treatment records (STRs) shows the Veteran complained of left shoulder pain in July 1996. The second element of service connection, an in-service occurrence, has been met. The remaining inquiry is whether the Veteran's diagnosed left shoulder disability is due to service. The Veteran was afforded a VA examination in June 2017. The examiner opined that the Veteran's left shoulder disability was not related to active service, reasoning that the Veteran had an acute injury to the left shoulder during service with no ongoing complaints through the remainder of his active-duty service. The examiner added that the Veteran's disability was likely due to wear and tear of the shoulder since discharge. The March 2023 Board decision found the examination inadequate and remanded for an additional opinion that addressed the Veteran's lay statements. In a July 2023 VA examination, the Veteran was diagnosed with left shoulder rotator cuff tendonitis. The examiner found that the disability was less likely than not due to service. He reasoned that there was no complaint or treatment in service, contrary to the above. The RO requested an addendum opinion to include the Veteran's in-service complaint of left shoulder pain. In a November 2023 addendum opinion, the examiner found the Veteran's left shoulder disability was less likely than not due to service. The examiner noted the Veteran's complaint of left shoulder pain in service that was assessed a musculoskeletal strain. The examiner found that the Veteran's diagnosed rotator cuff tendonitis was less likely than not due to his complaint of left shoulder pain in service. He reasoned that the Veteran's complaint of left shoulder pain in 2014 was due to a civilian work-related incident, and that he had complained of pain for week, as opposed to years or since service. He further reasoned that the Veteran's in-service complaint was acute and had resolved. Finally, he found that the Veteran's reports of continued pain unlikely in the years between service and his complaint in 2014. The Board acknowledges the Veteran's statements that his left shoulder is related to service. However, the Board notes that the Veteran's separation examination was silent for any chronic left shoulder condition but did not a chronic right shoulder condition. The records are silent for any treatment or complaint specifically of any left shoulder condition at Separation in 2000 until 2014, 14 years after active service ended. The Board notes the Veteran's statements, to include during his April 2022 Board hearing, but still notes the service treatment records were silent for any chronic effects of that claimed left shoulder condition, to include any left shoulder problems. A negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Finally, though the Veteran has testified to continuing pain since service, he cannot establish service connection by way of continuity of symptomatology because tendonitis is not a chronic disease listed under 38 C.F.R. § 3.309 (a). Walker, 708 F.3d 1331, 1337 (Fed. Cir. 2013). The Board notes there are no other statements by any medical provider, VA or private, that are in favor of a possible nexus to service for the Veteran's claimed left shoulder disability. The third element for entitlement to service connection, a nexus to service, has not been met. Based on the above, the Board finds that the weight of the competent and credible evidence is persuasively against the claim of service connection for a left shoulder disability, and the claim must be denied. Because the approximate balance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Marcus N. Fulton Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, 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.