Citation Nr: 0809881 Decision Date: 03/25/08 Archive Date: 04/09/08 DOCKET NO. 99-04 112 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUE Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The veteran served on active duty from October 1974 to April 1977. This appeal comes before the Board of Veterans' Appeals (Board) from a rating decision rendered in May 1998 by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In September 2004 and again in February 2007, the Board remanded the issue as noted on the title page for further development. The case has been returned to the Board for further appellate consideration. FINDINGS OF FACT 1. In December 1992, the veteran reported that he separated his left shoulder in March 1991. 2. Competent medical evidence dissociates any current left shoulder disorder from active service. CONCLUSION OF LAW A left shoulder disorder was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b) (1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims (Court) held, in part, that a notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits. In the present case, the unfavorable decision that is the basis of this appeal was already decided and appealed prior to the enactment of the current section 5103(a) requirements in 2000. The Court acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not mandated at the time of the initial RO decision, VA did not err in not providing such notice. Rather, the veteran has the right to a content complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notices provided prior to March 2007 did not address either the rating criteria or effective date provisions that are pertinent to the claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to the left shoulder. VA's duty to notify was satisfied by way of a letters sent to the veteran in March and May 2007. The notice requirements were addressed in these letters that informed the veteran of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession. Timing errors in these notices were cured by issuance of a fully compliant notice, followed by readjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (where notice was not provided prior to initial VA adjudication, this timing error can be cured by the Board remanding for the issuance of a notice letter followed by readjudication of the claim); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (notification followed by issuance of a statement of the case (SOC) or supplemental SOC, will cure a timing defect). VA's duty to notify was satisfied subsequent to the initial RO decision by way of a letter sent to the veteran in March 2007. The letter addresses all notice elements. The veteran has been offered meaningful opportunity to participate effectively in his claim and given ample time to respond, but VA also readjudicated the case by way of a September 2007 supplemental statement of the case after the notice was provided. For these reasons, Board adjudication of the claim does not result in unfair prejudice to the veteran. As noted above, VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All available service medical records and post-service treatment reports have been searched for and the veteran has been provided a VA examination. All necessary development has been accomplished. Service Connection Service connection will be awarded for disability resulting from injury or disease incurred in or aggravated by active service (wartime or peacetime). 38 U.S.C.A. §§ 1110; 1131 (West 2002), 38 C.F.R. § 3.303(a) (2007). Service connection requires competent evidence showing: (1) medical or, in certain circumstances, lay evidence of in- service incurrence or aggravation of a disease or injury; (2) medical evidence of current disability; and (3) medical evidence of a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996). In Caluza, the Court also stressed that § 3.102 states, "The reasonable doubt doctrine is also applicable even in the absence of official records, particularly if the basic incident arose under combat, or similarly stressful conditions [emphasis added], and is consistent with the probable results of such known hardships." Caluza, 7 Vet. App. at 509. Each disabling condition shown by service medical records, or for which the veteran seeks service connection, must be considered on the basis of the places, types, and circumstances of his service as shown by service records, the official history of each organization in which he served, his medical records, and all pertinent medical and lay evidence. 38 C.F.R. § 3.303(a). "Direct" service connection may be granted for any disease not diagnosed initially until after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred during service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). Once the evidence has been assembled, the Board assesses the credibility and weight to be given to the evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) and cases cited therein. When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2007). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that a veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. According to 38 U.S.C.A. § 1154(a), the Secretary must consider the places, types, and circumstances of the veteran's service, his unit's history, his service medical records, and all pertinent lay and medical evidence in the case. More favorable consideration is afforded combat veterans under 38 U.S.C.A. § 1154(b), but, because the veteran was not in combat, he will not be afforded this consideration. His DD Form 214 reflects that he served as an artilleryman at Fort Hood, Texas. The veteran's service medical records (SMRs) reflect that the musculoskeletal system was normal at entry into active service. During active service, no complaint or treatment relevant to a left shoulder injury or any other injury was shown. A February 1977 separation examination report reflects that the upper extremities were normal, although the report of medical history that usually accompanies an examination report is missing. Thus, whether the veteran reported a left shoulder disorder at that time cannot be ascertained from the SMRs. Shortly after discharge from active service, the veteran applied for service connection for foot and nervous disorders, but the claims were denied because of no relevant treatment during active service. The veteran made no mention of a left shoulder disorder in that claim. In October 1997, the veteran claimed service connection for a left shoulder disorder. He reported that he was treated for a left shoulder injury in 1975 at Fort Hood. The RO received numerous VA treatment records and Social Security Administration (SSA) records and a few private treatment reports. None of these indicate that a left shoulder disorder was incurred during active service. These records do corroborate his report of a severe closed head injury in March 1991. The RO received a VA Form 21-4176, Report of Accidental Injury, which the veteran had completed and signed in December 1992. On the form, he reported that he was admitted to Baylor University Medical Center on March 19, 1991, with injuries. He claimed that he did not know the circumstances of the incident that led to injuries, but he did recall that he had "neck, back injuries, separated left shoulder and broken R Great toe." He reported that the police had found him in a coma. During an October 2005 VA orthopedic compensation examination, the veteran reported that he injured the left shoulder during active service in a vehicle accident. Limitation of motion of the left arm was noted and X-rays showed degenerative joint disease of the acromioclavicular joint. The diagnosis was history of contusion and sprain with rotator cuff injury and impingement. The examiner, who had reviewed the claims file, felt that it was likely that the reported truck accident during active service led to the current left shoulder disorder. An October 2005 VA mental disorders compensation examination report is relevant to the veteran's credibility as an historian. According to the report, since the March 1991 closed head injury, the veteran has had visual and auditory hallucinations and memory problems, although it was unclear whether he was delusional. The veteran agreed that these problems began after his accident and reported continued marijuana use. The diagnosis was psychotic disorder due to residuals [of] closed head injury. An October 2005 VA brain and spinal cord compensation examination report is also relevant to the veteran's credibility as an historian. The examiner was asked to evaluate the veteran for organic brain syndrome and dementia. The veteran admitted to severe memory problems since a March 1991 head injury. The impression was severe closed head injury with residual memory, behavior, and executive functioning problems. In February 2007, the Board requested that the VA examiner who conducted the October 2005 orthopedic examination review the relevant medical history, including the report of a separated left shoulder in 1991, and address the likelihood that the left shoulder disorder was incurred during active service. In May 2007, the VA examiner noted that after extensive review of the claims folders the December 1992 VA Form 21- 4176 was not located. However, the examiner did review a 1997 treatment report that mentions past shoulder injuries. The examiner opined that the 1991 left shoulder separation would indicate that the current symptoms are less likely than not related to active service. The Board is persuaded that the preponderance of the evidence is against the claim. The SMRs reflect no shoulder complaint. The separation examination report indicates no residual shoulder disability, even assuming arguendo that the veteran did injure his left shoulder during active service. Post-service lay evidence indicates that the veteran separated his left shoulder in 1991 and did not file a claim for service connection until some years after that event. The only evidence that favors the claim is the veteran's opinion. Concerning the competence of this evidence, VA regards lay statements to be competent evidence of descriptions of symptoms of disease, disability, or injury, but not the determination of an issue involving a question of medical expertise. 38 C.F.R. § 3.159; Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); but see Jandrea v. Nicholson, 492 F.3d1372, 1377 (Fed. Cir. 2007) (lay diagnosis is competent if: (1) lay person is competent to identify the medical condition; (2) lay person is reporting a contemporaneous medical diagnosis; or (3) lay testimony of symptoms at the time supports a later diagnosis by a medical professional); See also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence. While a lay witness is competent to report when symptoms arose, in this case, there is no lay evidence tending to show that any left shoulder symptom arose prior to 1991. Although the veteran attributes his current left shoulder condition to active service, he is not competent to offer that opinion. Espiritu, supra. Moreover, his credibility is called into question because of documented memory and cognitive impairments. Finally, although the medical examiner had earlier offered a favorable nexus opinion, more recently that examiner offered a negative medical opinion. The earlier medical opinion carries no weight because it is based on an erroneous assumption of no post-service shoulder trauma. Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005) (medical opinion is persuasive if based on correct facts); Struck v. Brown, 9 Vet. App. 145, 155 (1996) (The Board may reject a physician's opinion based on the history related by the claimant). After considering all the evidence of record, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. Service connection for the left shoulder is therefore denied. ORDER Service connection for a left shoulder disability is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs