Citation Nr: 25005380 Decision Date: 04/22/25 Archive Date: 04/22/25 DOCKET NO. 17-61 315 DATE: April 22, 2025 ORDER Entitlement to service connection for a right shoulder condition is denied. Entitlement to service connection for a left shoulder condition is denied. REMANDED Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for a left knee condition is remanded. FINDING OF FACT The evidence persuasively weighs against finding that the Veteran's bilateral shoulder conditions began during or are otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right shoulder condition have not been met. 38 U.S.C. § §§ 1110, 5107;?38?C.F.R. §§?3.102, 3.303, 3.304. 2. The criteria for entitlement to service connection for a left shoulder condition have not been met. 38 U.S.C. § §§ 1110, 5107;?38?C.F.R. §§?3.102, 3.303, 3.304. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the U.S. Marine Corps from March 1970 to March 1972. In a November 2023 decision, the Board of Veterans' Appeals (Board) denied service connection for bilateral knee and shoulder conditions. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In August 2024, while the case was pending at the Court, the parties signed a Joint Motion for Remand (JMR), requesting that the Court vacate the Board's decision. The Court subsequently granted the JMPR in an August 2024 order. The matter has now been returned to the Board for further consideration. In January 2020, the Veteran testified at a videoconference hearing before the undersigned. A transcript of the hearing is associated with the claims file. 1. Entitlement to service connection for a right shoulder condition is denied. 2. Entitlement to service connection for a left shoulder condition is denied. The Veteran contends that his bilateral shoulder conditions began in service as a result of overuse and have continued since. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38?U.S.C. §§?1110, 1131, 5107; 38?C.F.R. §?3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38?C.F.R. §?3.303(d). In determining whether?service connection?is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in approximate balance, with the claimant prevailing in either event. See?38?U.S.C. §?5107(b);?38?C.F.R. §?3.102. When the evidence weights persuasively against the claim, the claim must be denied. Id. First, the evidence of record shows the Veteran has been diagnosed with bilateral shoulder rotator cuff tear, right shoulder glenohumeral joint osteoarthritis, and left shoulder joint replacement. See July 2023 CAPRI, pp. 4 & 29. Thus, the first element of service connection has been satisfied. See Shedden, 381 F.3d at 1166-67. The Veteran has testified that he spent a lot of time loading and unloading materials during his two years of service and that his military occupational specialty (MOS) was a rifleman, which meant he did anything that needed to be done. See January 2020 Hearing Transcript. He further testified that he was often stiff and sore after his physical duties, but he did not complain due to being a Marine. Although the Veteran's assertions concerning his shoulders cannot be corroborated by his STRs, the Board finds that the Veteran is competent to report experiencing stiffness and soreness after physical duties in service and that his assertions are credible. Therefore, affording the Veteran the benefit of the doubt, the second element of service connection is also satisfied. Id. The remaining question is whether there is a medical nexus between the Veteran's currently diagnosed bilateral shoulder conditions and his service. After careful review of the record, the Board finds that the evidence persuasively weighs against finding a nexus. The Veteran underwent a VA examination for his bilateral shoulder conditions in February 2021. The VA examiner opined that none of the Veteran's shoulder conditions were at least as likely as not related to service. In support of his opinion, he found that neither an injury or a diagnosis had occurred during service and that symptoms arose many years after separation from service. There was no record of issues with any of the diagnosed shoulder conditions during service that may have translated to the current conditions. The February 2021 examiner noted that there was documentation the Veteran reported an onset of 2005 for his shoulder conditions to his treating orthopedic surgeon prior to surgery despite the Veteran's report of onset in 1979 to the February 2021 examiner. The Veteran appeared for a VA examination in January 2023. He reported that he did not recall any injuries to his shoulders during service but began having bilateral shoulder pain and reduced range of motion in the mid-1980s due to overuse during service. The January 2023 examiner opined that the Veteran's bilateral shoulder conditions were less likely than not related to service. He acknowledged the Veteran's January 2020 Board testimony that his bilateral shoulder pain began in service due to wear and tear from lifting heavy items and carrying heavy back packs on marches and has continued since, as well as his testimony of post-service occupations as a heavy equipment operator for two to three years and as a social worker for 22 years with no physical labor involved. However, the January 2023 examiner found that the Veteran's STRs were silent with regard to any shoulder conditions, to include the February 1972 separation report of medical examination. The Veteran admitted that he never reported to sick call during service due to being a Marine, which the examiner also acknowledged, but the examiner provided that a separation examination did not carry the same stigma as normal reports to sick bay and that soldiers often will admit to problems they were silent about during service. Additionally, the examiner noted that there are no records documenting any shoulder problems from the time of separation from service until June 2008 when he was seen at the Huntington VA Medical Center (VAMC), a period of 36 years. Most importantly, his initial presentation to the VAMC 15 months prior in February 2007 showed no complaints of any current or past shoulder problems. The examiner found that the disparity between the documented shoulder pain duration and the Veteran's claim that he has had pain from the time of service casted serious doubt on his credibility. The type of bilateral shoulder conditions the Veteran presented with is generally the result of acute trauma and would more likely than not be brought to the attention of medical personnel during service, not 36 years later. When the Veteran was referred to orthopedics in June 2008 for left shoulder pain, the orthopedic surgeon noted that the pain began six months prior. At the time of the consultation, the surgeon documented that the Veteran was a retired coal miner. The examiner further noted that a March 2007 mental health consultation reflects that the Veteran worked for Central Appalachian Coal from 1974 to 1976 where he sustained an on-the-job low back injury. It also reflects that the Veteran worked in low seam underground coal mines and was fired from New Millennium Mining in 2006. He explained that coal mining, especially low seam coal mining, is a dangerous occupation because of the physical nature of the job and the risk of injury to any joint, include the shoulder. Therefore, the examiner concluded that coal mining, which reasonably might increase the Veteran's risk of bilateral shoulder injury, provides a more likely etiology than military service. The January 2023 examiner essentially provided the exact same opinions for the Veteran's bilateral shoulder conditions in July 2023. The Board finds the VA opinions to be probative as a whole. Both examiners reviewed the entire claims file and considered the Veteran's reports, his statements regarding bilateral shoulder pain, and his post-service medical and occupational history. Furthermore, the VA examiners supported their opinions with a reasoned medical explanation that offered alternative etiologies for the Veteran's current bilateral shoulder conditions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). The Board notes that the January 2023 examiner's comments on the Veteran's credibility improperly intruded on the Board's designated role as evaluator of the medical evidence. However, the Board has made its own determination concerning the Veteran's credibility without considering or being swayed by the January 2023 examiner's remarks. The Board does not doubt that the Veteran believes his bilateral shoulder conditions are related to his service, to include overuse. However, the record shows that the Veteran's conditions had their onset many years after service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (noting that the Board may consider lay statements to be of diminished probative value based on the significant time delay between observation and report of those observations). The record also shows that the Veteran worked as a coal miner on two different occasions prior to 1979 and as late as 2006. See May 2023 CAPRI, pp. 19-25; September 2007 CAPRI, p. 20. However, he omitted this information at his January 2020 Board hearing when discussing post-service employment and testified that his only post-service occupations were heavy equipment operator and social worker, which did not put stress on his shoulders. The Board finds the Veteran's statements in his treatment records to be more probative and more credible than statements made to VA for purposes of seeking compensation. See Cartright v. Derwinski,?2?Vet. App.?24, 25?(1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence.); see also Buchanan,?451 F.3d at 1337?(The Board can consider bias in lay evidence, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran in weighting credibility.). It is well within the Board's discretion to accord higher probative weight to statements made by a veteran against his or her own interest. See Del Rosario v. Peake, 22 Vet. App. 399, 408 (2009) (validating Board's placement of probative weight on statements made by appellant against his interest); see also Fed. R. Evid. 804(b)(3). As the Veteran's assertions are clearly contradicted by the record, the Board regrettably must afford the Veteran's assertions as to ongoing shoulder pain since service no probative value. See Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding the Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). While the Veteran believes his current bilateral shoulder conditions, including pain, is related to his service, he has not shown that he has specialized training sufficient to render a competent medical opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The question of whether the Veteran's shoulder conditions are related to his service is a complex medical question, not capable of lay observation. See id. at 1376. Because the evidence does not indicate that the Veteran has the appropriate training, experience, or expertise to provide a medical opinion concerning the etiology of his bilateral shoulder conditions, he is not competent to comment on their etiology. The medical evidence does not include any suggestion of a service etiology for any of his bilateral shoulder conditions. Additionally, although the Veteran has asserted that he experienced a continuity of symptomatology of his shoulders since service, he has sought treatment for other conditions. However, the evidence of record does not support that he complained of pain or sought treatment for his bilateral shoulder conditions until many years after service; therefore, the Board affords the Veteran's statements as to continuous symptomatology little probative value. See Gardin v. Shinseki, 613 F.3d 1374, 1379-80 (Fed. Cir. 2010) (affirming rejection of lay evidence based, in part, on fact that it was inconsistent with the record); see also McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006) (the Board may dismiss competent layperson testimony if it is found to be mistaken or to otherwise lack credibility). Accordingly, the Board finds the VA opinions to be significantly more probative than the Veteran's lay assertions and submissions. See Sacks v. West, 11 Vet. App. 314, 317 (1998). Unfortunately, there is simply no competent, credible, and probative evidence of record that supports a nexus between the Veteran's bilateral shoulder conditions and his service. The Board is grateful for the Veteran's honorable service, and this decision is not meant to detract from that service. However, given the record before it, the Board finds that evidence in this case does not reach the level of approximate balance. See 38 U.S.C. § 5107(a). In reaching this conclusion, the benefit of the doubt doctrine does not apply in this case. See id.; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Unfortunately, the Board concludes that service connection for bilateral shoulder conditions is not warranted at this time. REASONS FOR REMAND 3. Entitlement to service connection for a right knee condition is remanded. 4. Entitlement to service connection for a left knee condition is remanded. Upon review of the record, the Board finds that the claims must be remanded. The Board sincerely regrets the additional delay caused by this remand but wishes to assure the Veteran that it is necessary for a full and fair adjudication of his claims. The Veteran appeared for a VA examination in January 2023. The January 2023 examiner opined that the Veteran's bilateral knee conditions are less likely than not related to service. He noted that the Veteran reported he did not seek treatment for his bilateral knees until 1998 and that it was not until October 2021, a period of 49 years, that he was found to have any knee conditions. Thus, the examiner found that the STRs were silent with regard to any knee condition, to include the February 1972 separation report of medical examination. However, the Veteran's service treatment records (STRs) show complaint of bilateral knee pain in July 1971. As such, the January 2023 examiner's negative opinion seem to be at least partially based on inaccurate factual premises and, at a minimum, the examiner did not adequately consider in-service notation of bilateral knee pain. See Reonal v. Brown,?5?Vet. App.?458, 460-61?(1993) (a medical opinion based on incorrect factual premises is not probative). Accordingly, remand for a new VA examination and etiological opinion is warranted. The matters are REMANDED for the following action: 1. Assist the Veteran in associating with the claims file any relevant outstanding treatment records.? 2. Schedule the Veteran for a VA examination with an appropriate examiner to determine the nature and etiology of the Veteran's bilateral knee conditions.? The claims file should be made available to the examiner for review in connection with the examination.? Based on review of the record and an examination of the Veteran, the examiner should respond to the following:? (a.) Obtain a detailed history of the Veteran's bilateral knee conditions, to include any and all symptomatology and diagnosis.? (b.) For each diagnosed condition, state whether it is at least as likely as not that the Veteran's bilateral knee conditions had their onset in or are related to service, to include overuse.? The examiner must specifically address: " The Veteran's STRs that show a notation of bilateral knee pain in July 1971; and " The Veteran's lay history, including his January 2020 Board testimony that he had pain and swelling of the knees during and immediately after service. The examiner is advised that the Veteran is competent to report symptoms, treatment, and injuries, and that his reports must be taken into account in formulating the requested opinions. (Continued on the next page) ? The examiner must provide the rationale for all proffered opinions.? If the examiner is unable to provide any required opinion, he or she should explain why.? If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so.? If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. L. Park, 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.