Back to BVA DecisionsMIXEDService Branch NAVY Special Benefit §1151 Docket No. 11-24 905
SHOULDER IMPAIRMENT OF
J. PARKER · 2018 · Case ID: 18109768
Summary
The veteran, who served in the U.S. Navy from February 1984 to February 1988, appeals the denial of service connection for a bilateral shoulder disability, specifically shoulder impingement syndrome, and claims it is related to in-service injuries and symptoms. The veteran also appeals the denial of secondary service connection for this shoulder disability, claiming it was caused or aggravated by his service-connected back disability. The Board reviewed service treatment records which indicated some shoulder and back issues following an in-service motor vehicle accident, as well as treatment for right bicipital tendonitis and left scapular pain. However, the records showed no in-service complaint, diagnosis, or treatment for a neck injury, despite the veteran's assertion of an in-service MVA-related neck injury. The Board found the veteran's account of an in-service neck injury not credible due to its absence in complete service records. The earliest post-service evidence of bilateral shoulder problems appeared approximately 16 years after service, weighing against a finding of service incurrence. A VA reviewer opined it was less likely than not that the current bilateral shoulder disability was related to service, noting that in-service tendonitis and pain were self-limiting and resolved without sequelae, and that there was no indication of a future chronic condition. The Board also found the evidence weighed against secondary service connection, as a VA reviewer opined it was less likely than not that the service-connected back disability caused or aggravated the shoulder disability, citing anatomical and biomechanical disconnects. The Board found the veteran, while competent to report pain, lacked the medical expertise to diagnose impingement syndrome or opine on its etiology. The appeal for direct service connection for bilateral shoulder impingement syndrome is denied. However, the issue of compensation benefits under 38 U.S.C. § 1151 for bilateral shoulder impingement syndrome, claimed as a result of vocational rehabilitation training, is remanded for a supplemental medical opinion.
Rationale
Absence of chronic in-service symptoms; 16-year gap between service and post-service symptoms; VA reviewer opined less likely than not related to service
Full Decision Text
Citation Nr: 18109768 Decision Date: 06/11/18 Archive Date: 06/09/18 DOCKET NO. 11-24 905 DATE: June 11, 2018 ORDER Service connection for a bilateral shoulder disability, including as secondary to the service-connected back disability, is denied. FINDING OF FACT A bilateral shoulder injury and bilateral shoulder symptoms were manifested during service but were not chronic in service; the current bilateral shoulder disability was manifested many years after service and is not causally or etiologically related to service; the current bilateral shoulder disability was not caused or worsened beyond the normal progression (aggravated) by the service-connected back disability. CONCLUSION OF LAW The criteria for service connection of a bilateral shoulder disability, including as secondary to the service-connected back disability, are not met. 38 U.S.C. §§ 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, had active service in the U.S. Navy from February 1984 to February 1988. This matter is on appeal from a February 2010 rating decision. In February 2012, the Veteran presented testimony before the Board at a hearing held in Washington, D.C. In September 2016, the Board denied service connection for bilateral carpal tunnel syndrome, granted compensation benefits under 38 U.S.C. § 1151 for bilateral carpal tunnel syndrome, and remanded the issues of service connection for left and right shoulder impingement syndrome and compensation benefits under 38 U.S.C. § 1151 for left and right shoulder impingement syndrome, claimed as the result of participating in the Chapter 31 vocational rehabilitation training program, for VA supplemental medical opinion and subsequent readjudication of the appeal. After satisfactory completion of the ordered development for the service connection appeals, the case now returns to the Board. Service Connection Legal Authority Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may 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). Service connection may be established on a direct basis when there is competent, credible evidence of: (1) a current disability; (2) a disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Holton v. Shinseki, 557 F. 3d 1363, 1366 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also 38 C.F.R. § 3.303(a), (d). Service connection may be established on a presumptive basis for chronic diseases listed under 38 C.F.R. § 3.309(a) if chronic symptoms of the disease were shown in service; the disease was manifested to a compensable degree with a presumptive period, usually one year after service separation; or continuous symptoms of the disease were manifested since service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.33(b), 3.307, 3.309(a); see also Walker v. Shinseki, 708 F. 3d 1131 (Fed. Cir. 2013). Because the current diagnoses of left and right shoulder impingement syndrome are not listed as chronic diseases under 38 C.F.R. § 3.303(b), the presumptive service connection provisions are not applicable. Service connection may be established on a secondary basis for a disability which was either: (1) caused by, or (2) aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Compensation based on secondary aggravation will be awarded only for the degree of disability over and above the degree of disability prior to aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). 1. Service Connection for Bilateral Shoulder Impingement Syndrome The Veteran seeks service connection for a bilateral shoulder disability, which has been diagnosed as shoulder imping . § 3.303(b), the presumptive service connection provisions are not applicable. Service connection may be established on a secondary basis for a disability which was either: (1) caused by, or (2) aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310 (a). Compensation based on secondary aggravation will be awarded only for the degree of disability over and above the degree of disability prior to aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). 1. Service Connection for Bilateral Shoulder Impingement Syndrome The Veteran seeks service connection for a bilateral shoulder disability, which has been diagnosed as shoulder impingement syndrome. The Veteran contends that the bilateral shoulder disability is related to bilateral shoulder injuries sustained during service and shoulder symptoms shown during service. After review of all the lay and medical evidence of record, the Board finds that a bilateral shoulder injury and bilateral shoulder symptoms were manifested during service, were treated, and symptoms were not chronic in service. The Veteran was treated for shoulder problems on several occasions during service. In July 1985, the Veteran received treatment for right bicipital tendonitis. In August 1986, the Veteran experienced pain over the bilateral scapular muscles following a July 1986 motor vehicular accident (MVA). In September 1986, the Veteran received treatment for continued pain over the left scapular area. In November 1986, the Veteran reported continued mid-upper back pain of one-week duration. On the December 1987 service separation report of medical history, the Veteran reported occasional upper left shoulder pain when very cold. The Veteran has asserted that there was also an in-service cervical spine (i.e., neck) injury resulting from the in-service MVA, which was related to the current shoulder problems; however, the service treatment records, which are complete, show no report, complaint, diagnosis, or treatment of a neck injury or neck symptoms while simultaneously reporting other joint problems resulting from the in-service MVA, including shoulder and back problems. For these reasons, the Board finds that a neck injury (or disease) is a condition that would ordinarily have been recorded during service if had it occurred; therefore, the lay and medical evidence generated contemporaneous to service is likely to reflect accurately the Veteran's physical condition and shows no neck injury or disease, so the absence of any mention of a neck injury or symptoms, including related to the in-service MVA documented in records, is of significant probative value and provides evidence against a finding of that an in-service neck injury or continuous symptoms during service occurred. In consideration thereof, the Board finds that the account of in-service neck injury is not credible, so it is of no probative value. See Fed. R. Evid. 803(7) (indicating that the absence of an entry in a record may be evidence against the existence of a fact if such a fact would ordinarily be recorded); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (stating that VA may use silence in the service treatment records as evidence contradictory to a veteran’s assertions if the service treatment records appear to be complete and the injury, disease, or symptoms involved would ordinarily have been recorded had they occurred) (Lance, J., concurring); AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing and applying the rule that the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred, although holding that a veteran’s failure to report an in-service sexual assault to military authorities may not be considered as relevant evidence tending to prove that a sexual assault did not occur because military sexual trauma is not a fact that is normally reported); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (the absence of a notation in a record may only be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred). The weight of the evidence is against finding that the current bilateral shoulder disability is causally or etiologically related to service. The earliest post-service evidence of bilateral shoulder problems is shown in 2004, approximately 16 years after service separation. The gap of approximately 16 years between service and the onset of post-service bilateral shoulder symptoms is another factor that tends to weigh against finding of service incurrence for the current bilateral shoulder disability. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the of a notation in a record may only be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred). The weight of the evidence is against finding that the current bilateral shoulder disability is causally or etiologically related to service. The earliest post-service evidence of bilateral shoulder problems is shown in 2004, approximately 16 years after service separation. The gap of approximately 16 years between service and the onset of post-service bilateral shoulder symptoms is another factor that tends to weigh against finding of service incurrence for the current bilateral shoulder disability. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (the passage of many years between discharge from active service and evidence of a claimed disability is one factor to consider as evidence against a claim of service connection). Other evidence supporting this finding includes the October 2016 VA reviewer’s nexus opinion that it was less likely than not that the current bilateral shoulder disability was incurred in or related to service. In support of the medical opinion, the October 2016 VA reviewer reasoned that tendonitis and pain, as noted in the service treatment records, were self-limiting and resolved after treatment with no definitive or specific sequelae. The October 2016 VA reviewer added that there was no finding in the service treatment records that would indicate a future chronic shoulder condition. See March 2017 supplemental opinion. Because the October 2016 VA reviewer had medical expertise and training, had adequate facts and data on which to base the medical opinion, and supported the medical opinion with sound rationale, the October 2016 VA medical opinion is of significant probative value. The Board notes that, in a January 2008 treatment record, a treating VA chiropractor alternatively opined that the shoulder problems were due to cervical spine injuries sustained during the in-service MVA and post-service car accidents; however, because the chiropractor’s medical opinion is based on the inaccurate factual premise of an in-service cervical spine injury, contrary to the weight of the evidence and the Board’s factual finding in this case, the purported opinion is of no probative value. The weight of the evidence is also against finding that the bilateral shoulder disability was either caused or aggravated (i.e., worsened beyond the normal progression) by the service-connected back disability. On this theory of service connection, after review of the record, the October 2016 VA reviewer opined that it was less likely than not that the service-connected back disability caused or aggravated the bilateral shoulder disability. In support of the medical opinion, the October 2016 VA reviewer reasoned that, based on review of the medical literature in conjunction with the Veteran’s records, a condition of the back would have no direct or indirect impact upon a condition of the bilateral shoulders anatomically, biomechanically, or pathophysiologically. The October 2016 VA reviewer wrote that the type of physical therapy that would be utilized for the back would not biomechanically affect the bilateral shoulder condition. The Veteran is competent to report symptoms of shoulder pain that he experienced at any time; however, under the specific facts of this case, the Veteran does not have the requisite medical expertise to be able to diagnose the bilateral shoulder impingement syndrome or render a competent medical opinion regarding its cause. Shoulder impingement syndrome, which was manifested many years after service separation, is complex, involves unseen systems and disease processes involving the shoulder joint that are not observable by the five senses of a lay person, would require differentiation from other shoulder disorders, and is diagnosable only by X-ray or similar specific specialized clinical testing; therefore, under the facts presented in this case, as a lay person, the Veteran is not competent to diagnose bilateral shoulder impingement syndrome or opine on its etiology. The shoulder impingement syndrome diagnosis and a nexus opinion on its etiology require specific medical knowledge and training. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2009) (holding that it was not erroneous for the Board to find that a lay veteran claiming service connection for a back disorder and his wife lacked the "requisite medical training, expertise, or credentials needed to render a diagnosis" and that their testimony "could not establish medical causation nor was it a competent opinion as to medical causation"); Kahana v. Shinseki, 24 Vet. App. bilateral shoulder impingement syndrome or opine on its etiology. The shoulder impingement syndrome diagnosis and a nexus opinion on its etiology require specific medical knowledge and training. King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2009) (holding that it was not erroneous for the Board to find that a lay veteran claiming service connection for a back disorder and his wife lacked the "requisite medical training, expertise, or credentials needed to render a diagnosis" and that their testimony "could not establish medical causation nor was it a competent opinion as to medical causation"); Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (holding that ACL injury is "medically complex" for lay diagnosis). For these reasons, the Veteran's purported opinion that the current bilateral shoulder disability is the result of service or was caused or aggravated by the service-connected back disability is of no probative value; thus, in consideration of the foregoing, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against service connection for a bilateral shoulder disability; therefore, the appeal must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REMANDED Compensation benefits under 38 U.S.C. § 1151 for a bilateral shoulder disability, claimed as a result of participating in Chapter 31 vocational training program, is remanded. REASONS FOR REMAND 2. § 1151 Compensation Benefits for Shoulder Impingement Syndrome In September 2016, the Board, in pertinent part, remanded the issue of compensation benefits under 38 U.S.C. § 1151 for bilateral shoulder impingement syndrome (claimed as the result of participating in the Chapter 31 vocational rehabilitation training program) for a VA supplemental medical opinion. In an attempt to comply with the remand directives, the October 2016 VA reviewer opined that there was no objective definitive evidence that the Veteran sustained any additional shoulder disability either directly or through aggravation of any preexisting condition(s), as a result of participation in the vocational rehabilitation training program; however, the October 2016 VA medical opinion did not address the significance of the May 2008 letter from a treating VA chiropractor stating that prolonged sitting irritated the shoulders and increased muscle tension in the shoulders and the report that the bilateral shoulder disability had its onset in 2004 or 2005 during vocational rehabilitation training. For these reasons, further medical opinion would be helpful. The 1151 issue is REMANDED for the following actions: 1. Obtain a supplemental medical opinion from the October 2016 VA reviewer who provided a supplemental medical opinion on the shoulder disabilities (or another appropriate medical professional, if the reviewer is unavailable). Another medical examination is not necessary unless needed to provide the requested opinion. All relevant documents should be made available to and reviewed by the examiner in rendering the opinion. Based on review of the appropriate records, the VA reviewer should provide an opinion on whether it is at least as likely as not (i.e., to at least a 50 percent degree of probability) that the Veteran sustained any additional shoulder disability, either directly or through aggravation of any preexisting condition(s), as a result of participation in the vocational rehabilitation training program. If so, the reviewer should identify the additional shoulder disability. For the purpose of providing the medical opinion, the examiner should discuss the significance of the May 2008 letter from a treating VA chiropractor, which reads that prolonged sitting irritated the shoulders and increased muscle tension in the shoulders and includes the Veteran’s report that the bilateral shoulder disability had its onset in 2005 during her participation in the vocational rehabilitation training program. A rationale should be provided for all opinions given, and the factors upon which each medical opinion is based should be set forth in the report. 2. Thereafter, readjudicate the remanded issue. If any benefits sought on appeal remain denied, provide the Veteran and the representative with a supplemental statement of the case. Thereafter, return the case to the Board for further appellate consideration, if in order. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Ferguson Veteran and the representative with a supplemental statement of the case. Thereafter, return the case to the Board for further appellate consideration, if in order. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. Ferguson