SHOULDER IMPAIRMENT OF

DEREK R. BROWN · 2020 · Case ID: 20024462

DENIED

Summary

The veteran, who served from November 1964 to December 1967, appeals the denial of service connection for four conditions: a right shoulder condition involving rotator cuff musculature, an eye disorder including residuals of a fuel accident, allergies, and a gastrointestinal disorder with cancer involvement. The Board denied the right shoulder claim, finding no evidence of a current disability or functional impairment related to service, despite the veteran's credible testimony of pain. For the eye disorder, the Board acknowledged a current disability and the veteran's credible report of an in-service diesel fuel accident, but found no medical evidence linking the current conditions to the incident, giving more weight to the veteran's earlier statement of no residuals. The allergy claim was denied due to a lack of competent evidence of a current disability, with service records being silent and post-service records showing no known allergies. The gastrointestinal disorder claim was denied because the veteran did not identify any theory of service connection or in-service event related to his cancer diagnosis. The Board found no basis for providing additional examinations or opinions as the evidence did not support a link to service for any of the claimed conditions.

Rationale

No evidence of current disability or functional impairment; Service treatment records silent for shoulder complaints/diagnoses; No medical opinion linking current symptoms to service

Special Benefit

NO SPECIAL BENEFIT

Docket No.

16-55 619

Full Decision Text

Citation Nr: 20024462
Decision Date: 04/09/20 Archive Date: 04/09/20

DOCKET NO. 16-55 619
DATE: April 9, 2020

ORDER

Entitlement to service connection for right shoulder condition involving rotator cuff musculature is denied.

Entitlement to service connection for an eye disorder to include residuals of a fuel accident is denied.

Entitlement to service connection for allergies is denied.

Entitlement to service connection for gastrointestinal disorder, to include cancer with stomach, bowel, and pancreatic involvement is denied.

FINDINGS OF FACT

1. The preponderance of evidence is against finding that a current right shoulder disability exists.

2. The preponderance of the evidence is against finding that an eye disorder to include residuals of a fuel accident began in service or is otherwise related to active duty service.

3. The preponderance of the evidence is against finding allergies began in service or is otherwise related to active duty service.

4. The preponderance of the evidence is against finding gastrointestinal disorder, to include cancer with stomach, bowel, and pancreatic involvement began in service, or is otherwise related to active duty service

CONCLUSIONS OF LAW

1. Right shoulder condition involving rotator cuff musculature was not incurred or aggravated during a period of active military service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303.

2. Eye disorder to include residuals of a fuel accident was not incurred or aggravated during a period of active military service. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. Allergies was not incurred or aggravated. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303

4. Gastrointestinal disorder, to include cancer, with stomach, bowel and pancreatic involvement was not incurred or aggravated. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.303

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran performed active duty service from November 1964 to December 1967.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from decision by a Department of Veterans Affairs (VA) Regional Office (RO).

Service Connection

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a). To establish entitlement to service-connected compensation benefits, a veteran must show: (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 or aggravated during service. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010).

Congress specifically limits entitlement for service-connected disease or injury to cases where those incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim. Brammer v. Brown, 3 Vet. App. 223 (1992).

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and 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. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

An examination is required where there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (3) an indication that the disability or symptoms of disability may be associated with the established in-service event, injury, or disease or with another service-connected disability; but (4) insufficient competent medical evidence on which to decide the claim. McLendon v. Nicholson
to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

1. Right shoulder condition involving rotator cuff musculature

The Veteran contends he has a current right shoulder condition involving his rotator cuff musculature that is due to repetitive motion of his right arm on active duty.

Service treatment records (STRs) are silent for complaints, diagnoses, or findings for the right shoulder.

Post service treatment records are silent for complaints, diagnoses, and findings of right shoulder condition involving his rotator cuff musculature. The questions before the Board are has the Veteran been diagnosed with a right shoulder condition involving his rotator cuff musculature and has it been linked to service.

A Board hearing was conducted in June 2019. During the hearing the Veteran stated he repeatedly lifted his arm in his work cutting hair in service and then experienced numbness in his right shoulder, but he didn’t report it. He stated that he has mentioned it during treatment at VA, but deals with the pain, and self-medicates. He has not been told by any medical professional that his current symptoms are related to service.

The evidence does not establish a right shoulder condition involving his rotator cuff musculature at any time since the claim has been filed.

At his hearing the Veteran reported that he experiences pain now and self-medicates. The Board has no reason to doubt the Veteran’s credibility and he is competent to report symptoms of pain. Pain without a diagnosis or otherwise identified disease or injury can be sufficient to constitute a current disability in certain circumstances. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In Saunders the Federal Circuit did limit its holding, stating it did not “hold that a Veteran could demonstrate service connection simply by asserting subjective pain-to establish a disability, the veteran’s pain must amount to a functional impairment. To establish the presence of a disability, a veteran will need to show that her pain reaches the level of a functional impairment of earning capacity.” Id. at 1367-68.

Here, the Veteran has not made any specific contentions regarding how he believes his pain has resulted in specific functional impairments. The medical and lay also evidence does not suggest any functional impairments.

In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997).

The Board finds the VA is not obliged to provide an examination or obtain an opinion for the Veteran’s claimed condition because there is no evidence indicating that his reported symptoms of pain in the right shoulder may be associated with service. 38 U.S.C. § 5103A (d), 38 C.F.R. § 3.159 (c)(4)(i). The Veteran’s “conclusory generalized statement that his service illness caused his present medical problems” is not enough to entitle him to an examination. Waters v. Shinseki, 601 F.3d 1274, 1278-79 (Fed. Cir. 2010).

Since the preponderance of the evidence is against the claim, reasonable doubt may not be resolved in the Veteran’s favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Veteran’s claim of entitlement to service connection for a right shoulder condition involving his rotator cuff musculature is denied.

2. Eye disorder to include residuals of a fuel accident

The Veteran contends he suffered an eye disorder to include residuals of a fuel accident, while in service and that his current eye disabilities are due to this incident.

The record clearly shows current bilateral eye disabilities. Post service treatment records reveal the Veteran has had several eye surgeries and was diagnosed with macular hole in the eye. An August 2018 Ophthalmology VA treatment record summarizes the diagnoses of the right eye as: status post cataract surgery (2013) with posterior capsular opacity, history of macular hole with repairs,
(1990). Therefore, the Veteran’s claim of entitlement to service connection for a right shoulder condition involving his rotator cuff musculature is denied.

2. Eye disorder to include residuals of a fuel accident

The Veteran contends he suffered an eye disorder to include residuals of a fuel accident, while in service and that his current eye disabilities are due to this incident.

The record clearly shows current bilateral eye disabilities. Post service treatment records reveal the Veteran has had several eye surgeries and was diagnosed with macular hole in the eye. An August 2018 Ophthalmology VA treatment record summarizes the diagnoses of the right eye as: status post cataract surgery (2013) with posterior capsular opacity, history of macular hole with repairs, corneal endothelial lesions possibly scar, longstanding chorioretinal atrophy asymptomatic, optic nerve asymmetry left greater than right. For the left eye: nuclear cataract and history of vitreoretinal tuft. Thus, the Board finds the Veteran has met the element of establishing current disabilities of the eyes.

In a March 2010 VA treatment record, five years before he applied for benefits, the Veteran reported that he “got diesel fuel in both eyes while in service and also while working as a civilian. At his June 2019 Board hearing he stated he had an accident in service, which caused diesel fuel to get inside his eye, and that it was flushed with cold water at the time. Service records do not reflect this accident or any treatment for the eyes. However, the Veteran is competent to report the accident and the fact that he made a consistent report five years before filing a claim supports the finding that his description of the accident is credible. As a finder of fact, when considering whether lay evidence is satisfactory, the Board may consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, bias, and the Veteran’s demeanor when testifying at a hearing. Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). The Board finds that the second element of service connection, an injury in service, has been met.

The question before the Board is whether his current disabilities are related to the in-service diesel fuel incident.

STRs are silent for complaints, diagnoses, and findings of an eye disorder to include residuals of a fuel accident. In the March 2010 VA treatment record when the Veteran reported the diesel fuel eye injuries before and after service, he “report[ed] no effect on vision or eye health from these two incidents.” At his June 2019 Board hearing he stated that before he got out of service, “I guess I had a little film on my eye, and it came off.” No medical provider has told him that his current eye disabilities are related to the incident in service.

In this case, service treatment records are silent for complaints, diagnoses, and findings of an eye injury. His December 1967 separation examination shows normal clinical evaluation of the eyes. Post service treatment records reveal the Veteran has had several surgeries for his eyes, more than 30 years after separating from service. The earliest medical evidence of eye treatment is dated March 2010, where the Veteran complained of dark shadows over his right eye with an onset of two months prior. He had retina surgery in November 2010.

There is no medical evidence linking the current eye disabilities to service. The Veteran reported in March 2010 that there were no residuals from the diesel exposure in service. Because the Veteran made this statement without the bias of pursuing a service connection claim, the Board finds this report more credible than his subsequent assertions during the course of the appeal to the contrary. His earlier statement of no residuals is also consistent with the STRs which show normal eyes at separation from service. While the appellant may sincerely believe that his eye disorder is related to a fuel accident in service, as a lay person untrained in the field of medicine he is not competent to offer a medical opinion linking his current diagnoses to service. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

The Board finds the VA is not obliged to provide an examination or obtain an opinion for the Veteran’s claimed condition because there is no competent evidence indicating a link between current eye disabilities and service. The Veteran’s “conclusory generalized statement that his service illness caused his present medical problems” is not enough to entitle him to an examination. Waters.

Without a link to service, service connection cannot
his eye disorder is related to a fuel accident in service, as a lay person untrained in the field of medicine he is not competent to offer a medical opinion linking his current diagnoses to service. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

Without a link to service, service connection cannot be granted. Since the preponderance of the evidence is against the claim, reasonable doubt may not be resolved in the Veteran’s favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Veteran’s claim of entitlement to service connection for an eye disorder to include residuals of a fuel accident is denied.

3. Allergies

The Veteran contends he suffers from allergies due to service.

Service treatment records are silent of complaints, findings, and diagnoses of allergies. An October 1966 STR affirmatively states, “no known allergy.” During the June 2019 hearing, when the Veteran was asked when he started having allergy and sinus problems he answered, “in the area” and did not clarify when given the opportunity. When asked if he went to sick call he answered, “I believe so” but the STRs do not reflect any treatment for allergies or sinuses. The representative asked the Veteran if he avoided sick call due to his race and the Veteran answered in the affirmative. However, the Board notes that the STRs do reflect that the Veteran sought and received treatment for several other symptoms during active duty.

Post service records consistently note that the Veteran has no known allergies. See, e.g., VA treatment records dated October 2015, October 2018, July 2019. At his hearing, the Veteran testified that after service he has self-treated with over the counter medication and he didn’t remember being diagnosed with allergies. He does not appear to have ever sought medical treatment for allergies. He has not described the symptoms of his claimed allergies.

While the appellant may sincerely believe that he had allergies in service or has them now, as a lay person untrained in the field of medicine he is not competent to diagnose this condition, as it requires complex medical testing. Jandreau.

The Board is sympathetic to the Veteran’s November 2015 statement that he self-medicated due to lack of insurance over the years and never had a job long enough to get medical benefits. However, a claimant has the responsibility to present and support a claim for benefits and in this case there is no competent evidence presented to support a current disability of allergies.

The Board finds the VA is not obliged to provide an examination or obtain an opinion for the Veteran’s claimed condition because there is no competent evidence of a current disability or persistent or recurrent symptoms of a disability. 38 U.S.C. § 5103A (d), 38 C.F.R. § 3.159 (c)(4)(i).

In the absence of proof of a present disability, there can be no valid claim. Degmetich. Since the preponderance of the evidence is against the claim, reasonable doubt may not be resolved in the Veteran’s favor. Therefore, the Veteran’s claim of entitlement to service connection for allergies is denied.

4. Gastrointestinal disorder, to include cancer, with stomach, bowel and pancreatic involvement

The Veteran contends his gastrointestinal disorder, to include cancer, with stomach, bowel and pancreatic involvement is due to active duty service. However, he has not identified any theory of service connection or any injury, disease, or event in service to which his claimed diagnosis of cancer may be related.

The Board finds the VA is not obliged to provide an examination or obtain an opinion for the Veteran’s claimed condition because there is no evidence establishing that an event, injury, or disease occurred in service. McLendon.

In order to establish service connection, the evidence must show a disease or injury in service. Neither the record nor the Veteran suggest that there was any disease or injury in service related to his claimed current disability of cancer. Therefore, the Veteran’s claim of entitlement to service connection for gastrointestinal disorder, to include cancer, with stomach, bowel and pancreatic involvement is denied.

DEREK R. BROWN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board Anthony L. Hines Associate Attorney

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
.

DEREK R. BROWN

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board Anthony L. Hines Associate Attorney

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