Citation Nr: A25035491 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 220615-254743 DATE: April 17, 2025 ORDER Service connection for right elbow disorder is denied. Service connection for right shoulder disorder is denied. FINDINGS OF FACT 1. The Veteran served on active duty from June 1981 to June 1984 with additional periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA) in the National Guard from July 1984 to July 1988. 2. Right elbow osteoarthritis did not manifest during active-duty service or a period of active duty for training (ACDUTRA) and is not causally or etiologically related to service. 3. The Veteran did not sustain a right shoulder disorder during service; a current right shoulder disorder, diagnosed as a right shoulder strain, is not causally or etiologically related to service. CONCLUSIONS OF LAW 1. A right elbow disorder was not incurred in service and cannot be presumed to have been incurred in service. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2024). 2. A chronic right shoulder disorder was not incurred in service. 38 U.S.C. §§ 1131, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303 (2024). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This decision has been written under the guidelines of the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA). In July 2021, the agency of original jurisdiction (AOJ) denied the claims. In November 2021, the Veteran filed a Supplemental Claim that was denied by the AOJ in a May 2022 decision. In June 2022, the Veteran appealed to the Board via a VA Form 10182 and elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the AOJ decision on appeal. 38 C.F.R. § 20.301. Turning to the relevant laws and regulations, service connection may be granted on a direct basis as a result of disease or injury incurred in service based on nexus using a three-element test: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See 38 C.F.R. §§ 3.303(a), (d); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Service connection may be granted on a presumptive basis for diseases listed in 38 C.F.R. § 3.309 under the following circumstances: (1) where a chronic disease or injury is shown in service and subsequent manifestations of the same disease or injury are shown at a later date unless clearly attributable to an intercurrent cause; or (2) where there is continuity of symptomatology since service; or (3) by showing that the disorder manifested itself to a degree of 10 percent or more within one year from the date of separation from service. See 38 C.F.R. § 3.307. In addition to the laws and regulations outlined above, active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C. § 101(21) and (24); 38 C.F.R. § 3.6(a). ACDUTRA is defined as full-time duty in the Armed Forces performed by Reserves for training purposes, and includes full-time duty performed by members of the National Guard of any State. 38 U.S.C. § 101(22); 38 C.F.R. § 3.6(c)(1). Thus, service connection may be granted for a disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C. §§ 101(24), 106, 1110, 1131. Only "veterans" are entitled to VA compensation under 38 U.S.C. §§ 1110, 1131. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). To establish status as a "veteran" a claimant must serve on active duty, serve on a period of ACDUTRA and incur or aggravate an injury or disease during that period of ACDUTRA, or serve on a period of INACDUTRA and incur or aggravate an injury during that period of INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Thus, service on active duty alone is sufficient to meet the statutory definition of veteran; however, service on ACDUTRA or INACDUTRA, without more, will not suffice to give one "veteran" status. Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). Certain evidentiary presumptions, such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C. § 1112; 38 C.F.R. §§ 3.304(b), 3.306, 3.307, 3.309. These evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Smith v. Shinseki, 24 Vet. App. 40 (2010) (presumption of soundness and presumption of aggravation not applicable to ACDUTRA); Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (Board did not err in not applying presumptions of sound condition and aggravation to claim where appellant served only on ACDUTRA and had not established any service-connected disabilities from that period). The Veteran contends the right elbow and right shoulder disorders resulted from him falling off a truck during refueling in February 1986. Right Elbow As to direct service connection, a December 2020 VA examiner diagnosed the Veteran with right elbow osteoarthritis. As such, the first element of direct service connection has been met. As to in-service incurrence, the Veteran asserted the in-service incurrence was the February 1986 fall from a truck. Notably, this incident did not occur between June 1981 and June 1984 when he was on active duty. Instead, the fall occurred during training while the Veteran was in the National Guard. A March 1986 Statement of Medical Examination and Duty Status determined the incident occurred in the line of duty; however, the Statement also noted that at the time of the incident, the Veteran was on INACDUTRA. Generally, only "injuries" incurred during periods of INACDUTRA can be service connected. Arthritis is a disease not an injury. Therefore, the second element of direct service connection is not met, and the medical evidence does not support the claim for service connection. Next, arthritis is a chronic disease as defined in 38 C.F.R. §§ 3.307 and 3.309, and as such, service connection on a presumptive basis will be considered. However, presumptive service connection for a chronic disease may not be granted from a period of ACDUTRA or INACDUTRA. As such, it must be determined whether presumptive service connection is warranted due to active duty from June 1981 and June 1984. As noted, the Veteran asserted the in-service incurrence was the February 1986 fall from a truck, this incident did not occur between June 1981 and June 1984 while the Veteran served on active duty. Instead, the fall occurred during a period of INACDUTRA when the Veteran was in the National Guard. As such, presumptive service connection is not for application. The medical evidence does not support service connection for a right elbow osteoarthritis under either theory of entitlement. Right Shoulder As to a current disability, the December 2020 VA examiner diagnosed the Veteran with a right shoulder strain, and the first element of direct service connection has been met. As to in-service incurrence, the Veteran asserted the right shoulder injury resulted from the fall from the truck during INACDUTRA training in February 1986. As a shoulder strain is an injury, not a disease, the second element of direct service connection has been met. As to a medical nexus between the in-service injury and the current disability, the December 2020 VA examiner opined the right shoulder strain was less likely than not (less than 50 percent probability) incurred in or caused by the claimed injury. In support of the opinion, the examiner indicated there were no right shoulder injuries treated while in service. Additionally, a July 2021 VA examiner concluded likewise that the right shoulder strain was less likely than not (less than 50 percent probability) incurred in or caused by the claimed injury. In support of this opinion, the July 2021 VA examiner noted an extensive review of the medical records revealed no supportive treatment records, evaluations, profiles, or specialist records to show that the claimed condition received any evaluation. Further, the examiner stated that the claimed service event did not appear to have caused permanent damage or disability. Next, the clinical records were reviewed. The medical records following the February 1986 fall indicate the Veteran had been treated for a right elbow injury with additional follow-up treatments for the right elbow over the next month or two; however, absent from these records is any treatment for a right shoulder injury related to this fall. Likewise, the other clinical records are silent for any treatment associated with the fall from the truck to include the right shoulder. Therefore, the last element of direct service connection, a medical nexus, has not been met, and the medical evidence does not support that the Veteran's right shoulder disorder is related to service. Here, the Board is not merely relying on the absence of evidence, but also on the contemporaneous medical records that specifically show that the Veteran had been treated for another injury related to the same fall that the Veteran asserted injured the right shoulder. To the extent that he now states that he has a chronic right shoulder disorder related to service, the Board finds that the current assertions made for VA compensation purposes are given less probative weight, because they are contradicted and outweighed by the more contemporaneous lay and medical evidence. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (Board decision properly assigned more probative value to a private hospital record that included lay history that was made for treatment purposes than to subsequent statements made for compensation purposes). As to both claims, the Board has considered the Veteran's lay statements that the current right elbow and right shoulder disorders were caused by service. While he is competent to report symptoms as this requires only personal knowledge as it comes through the senses, he is not competent to offer an opinion as to the etiology of the current disorders due to the medical complexity of the matters involved. Such competent evidence concerning the nature and extent of the Veteran's elbow and shoulder disorders has been provided by the medical personnel who examined him during the current appeal, and who rendered pertinent opinions in conjunction with the evaluations. Those findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disorder is evaluated. The VA medical professionals explained their reasoning based on an accurate characterization of the evidence. Therefore, the Board attaches greater probative weight to the clinical findings than to their lay statements regarding etiology. In sum, after a careful review of the record, the evidence weighs persuasively against the claims for service connection, and there is no doubt to be resolved. As such, the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Michael Lane Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Ferguson, 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.