Citation Nr: 1127495 Decision Date: 07/22/11 Archive Date: 07/29/11 DOCKET NO. 04-20 249A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUE Entitlement to service connection for a left shoulder disability, including as secondary to service-connected disabilities. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD S. Lipstein, Associate Counsel INTRODUCTION The Veteran had active service from August 1965 to July 1969, and from April 1971 to May 1987. This appeal to the Board of Veterans Appeals (the Board) is from actions taken by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, CA. The Board remanded these claims in July 2006, December 2007, and October 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). The claims file contains the Veteran's service treatment records and the Veteran underwent a VA examination in June 2010. A February 2003 rating decision also denied service connection for a low back disability, but this benefit was subsequently granted by rating decision in January 2011. The issue of service connection for a low back disability is therefore no longer in appellate status. The issue of entitlement to an earlier effective date for service connection for chronic lumbar strain and multilevel lumbar degenerative disc disease has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDING OF FACT The evidence of record fails to demonstrate that a left shoulder disability was manifested during service or for many years thereafter, or that the Veteran's current diagnosis of a left shoulder disability is either attributable to service or to his service-connected disabilities. CONCLUSION OF LAW A left shoulder disability was not incurred in or aggravated by active service, may not be presumed to have been incurred in service, and has not been caused by or aggravated by the Veteran's service-connected disabilities. 38 U.S.C.A. §§ 1101, 1110, 1131, 1137, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2010). 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 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 (2010) 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 a letter from the RO to the Veteran dated in August 2002, prior to the initial adjudication of the claim. Additionally, in January 2007, 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 Veteran, 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, since the Board concludes below that there is a preponderance of the evidence against entitlement to service connection for a left shoulder disability, any questions as to the appropriate disability ratings and effective dates 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. The evidence of record contains the Veteran's service treatment records, as well as post-service VA and private medical records. In this case, the Veteran was afforded several VA examinations pertaining to his claim for service connection for a left shoulder disability. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination and opinion obtained in this case in June 2010 is adequate, as the opinion is predicated on a reading of pertinent medical records and is responsive to the medical questions raised in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issue on appeal has been met. See 38 C.F.R. § 3.159(c) (4) (2010). The January 2010 examination and opinion is thorough and supported by the record. The examination and opinion noted above is therefore adequate upon which to base a decision. 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 other 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 duties to notify and duty to assist have been satisfied. Criteria & Analysis Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from injury suffered or disease contracted in line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, in the active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304, 3.306. 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, 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). The Court held that, in order to prevail on the issue of service connection on the merits, there must be medical evidence of (1) a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Additionally, disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. The Board also notes that secondary service connection on the basis of aggravation is permitted under 38 C.F.R. § 3.310, and compensation is payable for that degree of aggravation of a non-service-connected disability caused by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The Board observes that 38 C.F.R. § 3.310 was amended effective October 10, 2006. See 71 FR 52744-47, (Sept. 7, 2006). The intent was to conform the regulation to Allen. Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury, however, unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. See 38 C.F.R. § 3.310 (2010). The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation, specifically, in terms of establishing a baseline level of disability for the non-service-connected condition prior to the aggravation. Because the new law appears more restrictive than the old, and because the Veteran's appeal already was pending when the new provisions were promulgated, the Board will consider this appeal under the law in effect prior to October 10, 2006. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (holding that new regulations cannot be applied to pending claims if they have impermissibly retroactive effects). In this case, the Veteran claims that he suffers from a left shoulder disability, including as secondary to service-connected disabilities. At the outset, the Board notes that the Veteran is diagnosed with a left shoulder disability. Thus, element (1) of Hickson has been satisfied, in that the Veteran has demonstrated that he has a current disability. A service Report of Medical Examination dated in August 1965 for enlistment purposes reflects that the Veteran's upper extremities were clinically evaluated as normal. A Report of Medical Examination dated in July 1969 for separation purposes reflects that the Veteran's upper extremities were clinically evaluated as normal. A Report of Medical History dated in July 1969 for separation purposes reflects that the Veteran complained of painful or "trick" shoulder or elbow. A Report of Medical Examination dated in February 1971 for pre-induction purposes reflects that the Veteran's upper extremities were clinically evaluated as normal. A Report of Medical History dated in February 1971 for pre-induction purposes reflects that the Veteran checked the 'no' box for painful or "trick" shoulder or elbow. In September 1977, it was specifically noted that the Veteran had had left shoulder and neck pain. He gave a history of similar findings and said he had been seen at a prior base for these symptoms. The neck pain had been present for 3-4 days and examination showed decreased range of motion. Diagnosis was muscle spasm for which he was given heat, told not to use pillows, and given Robaxin and ASA. In October 1977, the Veteran was diagnosed with muscle spasm, at shoulder, etiology undetermined. In November 1981, he was seen for upper sternal border pain just to the left and between the shoulder blades. A Report of Medical Examination dated in January 1986 for periodic purposes reflects that the Veteran's upper extremities were clinically evaluated as normal. In June 1986, the Veteran awakened with stiffness increased from the day before, and what was diagnosed as torticollis in the left scapular insertion area. Ranges of motion were decreased. Robaxin and Motrin were prescribed. A follow-up notation was that the stiff neck had been present for 24 hours; the neck was still tight but not as much as it had been before. Diagnosis was torticollis. He was confined to quarters. A Report of Medical Examination dated in November 1986 for retirement purposes reflects that the Veteran's upper extremities were clinically evaluated as normal. A Report of Medical History dated in November 1986 for retirement purposes reflects that the Veteran checked the 'no' box for painful or "trick" shoulder or elbow. Treatment records from a private care-giver reflect that Computerized Tomography (CT) scans and magnetic resonance imaging (MRI)s had confirmed severe abnormalities of the cervical spine. A CT myelogram showed multilevel foraminal disease of the cervical spine but it was noted that it was fairly symmetrical bilaterally. The Veteran underwent a VA examination in April 2009. He reported a left shoulder disability since 2006. Following physical examination, the examiner noted that a left shoulder problem was associated with degenerative joint disease of the right shoulder. The examiner noted mild effects on traveling, feeding, bathing, dressing, toileting, grooming, and driving; moderate effects on chores and shopping; severe effect on exercise; and sports was prevented. Although the Veteran seemed to reference difficulties with his left shoulder, and certain albeit mild impact on his daily living appears to have been identified on the examination, the examiner concluded that he only had right shoulder problems and that the examination was to assess those residuals. X-rays were not obtained of the left shoulder and no further opinion was provided. The Veteran underwent another VA examination in June 2010. The examiner noted the September 1977 service treatment record in which the Veteran presented left shoulder and neck pain. The Veteran reported no left shoulder problem. He denied a history of injury to left shoulder joint. Following physical examination, the examiner diagnosed left shoulder degenerative joint disease. The examiner opined that the Veteran's left shoulder disability is not related to active service. The examiner noted that the Veteran mentioned no history of shoulder injury while on duty. The examiner stated that the only reference related to shoulders was done when "Right" shoulder pain was documented as one of the symptoms accompanying neck pain during active service. The examiner opined that changes reported in the left shoulder x-ray are more likely than not age-related. The examiner opined that the Veteran's left shoulder condition is not associated to the already service-connected cervical and right shoulder conditions. The examiner reasoned that the left shoulder condition is not considered a complication or cause of these disabilities. The examiner opined that the left shoulder condition has not contributed to and/or otherwise impacted the other service-connected disabilities. The examiner reasoned that the left shoulder condition is not considered a complication or cause of the other service-connected disabilities. Despite the Veteran's contentions otherwise, there is no persuasive evidence to support a finding that his current left shoulder disability is etiologically related to service or any incident therein. The Board notes the Veteran's left shoulder complaints in service. However, the Veteran's upper extremities were clinically evaluated as normal upon separation from service. The clinically normal findings are significant in that it demonstrates that trained military medical personnel were of the opinion that no left shoulder disability was present at that time. The Board views the examination report as competent evidence that there was no left shoulder disability at that time. Also of significance is the fact that, upon separation from service, the Veteran reported no left shoulder complaints and checked the 'no' box for painful or "trick" shoulder or elbow. This suggests that the Veteran himself did not believe that he had any ongoing left shoulder problems at that time. Additionally, the Board notes that the Veteran stated at the April 2009 VA examination that the left shoulder problem started in 2006. Moreover, the lack of any evidence of a continuing left shoulder disability for many years between the period of active duty and the evidence showing a left shoulder disability is itself evidence which tends to show that no left shoulder disability was incurred as a result of 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). Finally, the Board believes it significant that the June 2010 medical examiner opined that a left shoulder disability was not etiologically related to service, nor was it associated to the already service-connected disabilities. The Board notes that the examiner's opinion referred to a "Right" shoulder complaint during service. As noted above, the Veteran complained of left shoulder pain in service, and the June 2010 examiner initially referred to this complaint in service. Thus, based upon a careful review of the VA examination report and the examiner's statements contained therein, the examiner's reference to a "Right" shoulder complaint appears to be a typographical error. The June 2010 opinion was based on examination of the Veteran and review of the claims file. The Board believes it is entitled to considerable weight and is competent evidence regarding causation of the disability at issue. Moreover, it is consistent with, and fully supported by, the examiner's report of clinically normal upper extremities at separation. The Veteran is certainly competent to report symptoms such as pain, which are easily recognizable symptoms that come through senses, however, as a lay person, the Veteran is not competent to offer an opinion on a matter clearly requiring medical expertise, such as opining that his left shoulder disability is etiologically related to service or any service-connected disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). The Board finds that the determination of whether current left shoulder disability is related to certain claimed events in service, or otherwise to service ending many years prior to the first post-service evidence of such disability is not a matter susceptible to lay opinion. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Therefore, this is not a case in which the Veteran's lay beliefs alone can serve to establish an association between the claimed disability and either his military service or a service-connected condition, and the Board assigns greater probative weight to the opinions of the June 2010 VA examiner. For these reasons, the Board finds that there is a preponderance of the evidence against the Veteran's claim for service connection for a left shoulder disability and the claim must be denied. Because there is a preponderance of the evidence against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for a left shoulder disability, including as secondary to service-connected disabilities, is denied. ____________________________________________ V. L. JORDAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs