Citation Nr: 1017447 Decision Date: 05/11/10 Archive Date: 05/26/10 DOCKET NO. 06-26 829 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Lipstein, Associate Counsel INTRODUCTION The Veteran had active service from October 1969 to December 1971. This appeal came before the Board of Veterans' Appeals (Board) from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. This matter was remanded in September 2009. A review of the record shows that the RO has complied with all remand instructions to the extent possible. Stegall v. West, 11 Vet. App. 268 (1998). FINDING OF FACT A right shoulder disability was not manifested during service, nor within the first year of discharge from service, nor is a right shoulder disability otherwise related to such service. CONCLUSION OF LAW A right shoulder disability was not incurred in or aggravated by the Veteran's active service, nor may in-service incurrence be presumed. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2009) Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notification obligation in this case was accomplished by way of letters from the RO to the Veteran dated in October 2004 and November 2004. In March 2006, the Veteran was provided with notice of the types of evidence necessary to establish a disability rating and the type of evidence necessary to establish an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Despite initial inadequate notice provided to the appellant, the Board finds no prejudice to him in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the appellant has been prejudiced thereby). In any event, in light of the following decision which finds that there is a preponderance of the evidence against the appellant's claim, any questions as to the appropriate disability rating and effective date to be assigned are rendered moot. The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. In this case, the Veteran's service treatment records, as well as post-service VA and private medical records are on file. The evidence of record also contains a January 2010 report of VA examination. The examination report obtained is thorough and contains sufficient information to decide the issue on appeal. See Massey v. Brown, 7 Vet. App. 204 (1994). The Veteran and his representative have not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and have not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of his appeal. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). Therefore, the Board finds that the duty to notify and duty to assist have been satisfied. For all the foregoing reasons, the Board will proceed to the merits of the Veteran's appeal. Criteria & Analysis Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). 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.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 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). A service Report of Medical Examination dated in December 1971 for separation purposes reflects that the Veteran's upper extremities were clinically evaluated as normal. There are no other service treatment records related to a right shoulder disability, including records related to a February 1971 auto accident. A letter from Dr. R.R.M. dated in February 1986 reflects that the Veteran was seen in August 1984 with complaints of shoulder pain. The Veteran underwent a VA examination in March 1986. Following physical examination, the examiner diagnosed history of pain and discomfort in the right shoulder, examination was essentially normal. Private treatment records dated in August 1997 reflect that the Veteran complained of soreness in the right shoulder. VA progress notes in August 2008 document the Veteran's radiating right shoulder pain since his motor vehicle accident in the 1970s. Private medical records from Dr. R.K.S. dated in March 2009 reflect that the Veteran has a history of chronic pain in the right shoulder. Dr. R.K.S. noted that the Veteran stated that he was involved in a motor vehicle accident in the 1970s while he was in service. Dr. R.K.S. opined that x-ray and CT scan findings revealed degenerative arthritis on the shoulder which could be related to the Veteran's previous injuries during the accident. The Veteran underwent another VA examination in January 2010. He reported that he was involved in a motor vehicle accident in February 1971 when his vehicle struck a tree while he was on active duty. Following physical examination, the examiner diagnosed right shoulder impingement syndrome with subacromial bursitis secondary to AC joint arthritis, based on a MRI dated in October 2009. After examining the Veteran and reviewing the claims folder, the examiner opined that the Veteran's current condition is less likely than not secondary to service and is more likely than not secondary to the attrition of aging and overuse of the right upper extremity and lifting overhead activities. The examiner reasoned that there was no useful information found in the treatment records that indicated any problems with the shoulder. While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). A medical opinion based upon an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). A bare transcription of lay history, unenhanced by additional comment by the transcriber, does not become competent medical evidence merely because the transcriber is a medical professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). The Court has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Thus, a medical opinion is inadequate when it is unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). It is the responsibility of the Board to weigh the evidence, including the medical evidence, and determine where to give credit and where to withhold the same and, in so doing, the Board may accept one medical opinion and reject others. Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). But, we are mindful that we cannot make our own independent medical determinations, and that we must have plausible reasons, based upon medical evidence in the record, for favoring one medical opinion over another. Evans v. West, supra; see also Rucker v. Brown, 10 Vet. App. 67, 74 (1997), citing Colvin v. Derwinski, 1 Vet. App. 171 (1991). Thus, the weight to be accorded the various items of evidence in this case must be determined by the quality of the evidence, and not necessarily by its quantity or source. The Board finds it significant that the March 2009 records from Dr. R.K.S. include no rationale. The Board therefore finds that the January 2010 VA examination findings with rationale are entitled to more weight than the findings by Dr. R.K.S. We would also note that the records from Dr. R.K.S. addressed only the possibility that the claimed disability began in service, not the probability. An opinion expressed in the term of possibility also implies that it may not be possible and it is too speculative to establish a nexus between the Veteran's right shoulder disability and service. Obert v. Brown, 5 Vet. App. 30, 33 (1993) (The term "possibility" also implies that it "may not be possible" and it is too speculative to establish a nexus.). Moreover, on separation from service, the Veteran's upper extremities were clinically evaluated as normal. The clinically normal finding on separation examination is significant in that it demonstrates that trained military medical personnel were of the opinion that no right shoulder disability was present at that time. The Board views the examination report as competent evidence that there was no right shoulder disability at that time. Additionally, the record does not show pertinent complaints or medical treatment for a number of years after discharge from service. A prolonged period without medical complaint can be considered, along with other factors concerning the claimant's health and medical treatment during and after military service, as evidence of whether a disability was incurred in service or whether an injury, if any, resulted in any chronic or persistent disability which still exists currently. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Thus, the Board finds that the lack of any evidence of a continuing right shoulder disability for 12 years between the period of active duty and the evidence showing treatment for a right shoulder disability is itself evidence which tends to show that no right shoulder disability was incurred as a result of service. The Board finds the Veteran credible and has considered the Veteran's own lay statements to the effect that the right shoulder disability was due to service. However, the Veteran is not competent to provide a medical nexus opinion between the right shoulder disability and an injury, disease, or event of service origin. Where, as here, the determinative issue involves a question of a medical nexus or medical causation, not capable of lay observation, competent medical evidence is required to substantiate the claim because a lay person is not qualified through education, training, and expertise to offer an opinion on medical causation. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer a medical opinion. 38 C.F.R. § 3.159. For this reason, the Board rejects the Veteran's statements as competent evidence to substantiate the claim that a right shoulder disability is related to an injury, disease, or event of service origin. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a favorable decision for the issue adjudicated by this decision. 38 U.S.C.A. § 5107(b). ORDER Service connection for a right shoulder disability is not warranted. The appeal is denied. ____________________________________________ Motrya Mac Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs