Citation Nr: 0810205 Decision Date: 03/27/08 Archive Date: 04/09/08 DOCKET NO. 03-16 128 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES Entitlement to service connection for a right shoulder disorder. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD J. Kelley, Associate Counsel INTRODUCTION The veteran had active military service from June 1968 to June 1970. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2002 rating decision from the Regional Office (RO) of the Department of Veterans Affairs (VA) in San Juan, the Commonwealth of Puerto Rico. In December 2005, the Board remanded the case to the RO for additional notice and development. In a July 2007 rating decision, the RO granted service connection for the left knee disability and that issue is no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The case has been returned to the Board for further appellate consideration. FINDINGS OF FACT There is no competent medical evidence that establishes a nexus between the veteran's diagnosed right shoulder condition and active military service. CONCLUSIONS OF LAW A right shoulder condition was not incurred in or aggravated by active service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance The 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 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 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 (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (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, Dingess notice was provided in April 2006. Here, VA's duty to notify was satisfied by way of a letter sent to the appellant in June 2002 that fully addressed all four notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claims and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. VA 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. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA outpatient treatment records from the Mayaguez, Puerto Rico outpatient clinic and the Orlando Medical Center for the period of 1990 through the present. The appellant was afforded a VA medical examination in May 2007. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. See 38 U.S.C.A. § 1110, 1131; 38 C.F.R. §§ 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. See 38 C.F.R. § 3.303(b). 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). Where a veteran who served for ninety days or more during a period of war or after December 31, 1946, develops certain chronic diseases, such as arthritis, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). Medical evidence is required to prove the existence of a current disability and to fulfill the nexus requirement. Lay or medical evidence, as appropriate, may be used to substantiate service incurrence. The Court has held "where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required." Groveitt v. Brown, 5 Vet. App. 91, 93 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992) (holding that a witness must be competent in order for his statements or testimony to be probative as to the facts under consideration.) In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Service Connection for Right Shoulder Disorder The veteran contends that he injured his right shoulder in service. Service entrance examinations of April and October 1968 indicate the veteran had no notations of a right shoulder disorder. Service medical records of May 1969 indicate the veteran fell on his right arm and developed pain in the elbow, down the arm and tenderness over the lateral condyle of the right elbow. An x-ray of the same month showed a fracture of the right radial head (elbow) in good position and alignment, and he was prescribed a long arm cast and a sling. In May 1969, the veteran was placed on temporarily restricted duty for seven weeks due to his fractured right radial head. However, service medical records are negative for complaints, treatment or diagnoses of right shoulder disorder, and separation records of May 1970 note no right shoulder disorder. In September 1993, the veteran was treated by VA for shoulder pain, and x-rays indicated no significant bony, articular or soft tissue pathology, and that the right shoulder was essential normal. From March to December 1999, the veteran received VA treatment for a painful shoulder, which was diagnosed as bursitis and also a lipoma was noted there, which was excised in November 1999. VA x-rays of September 2002 of the right shoulder indicate the veteran had moderate to severe degenerative changes at the acromio clavicular joint. Treatment records of the same month note the veteran was given pain medications for his right shoulder. Physical therapy was recommended and began in March 2003, continuing until June 2003. May 2003 treatment records show the active range of motion was 90 degrees of abduction, external rotation of 60; there was full range of motion on passive motion. The diagnosis was exacerbation of chronic shoulder pain associated with an old injury, and degenerative disease of the acrimioclavicular joint. The physician could not exclude the presence of a partial rotator cuff tear. A VA magnetic resonance imaging (MRI) of August 2003 revealed complete tears of the supra and infraspinatus tendons with associated muscle atrophy and proximal retractions, acromioclavicular joint hypertrophic changes contributing to narrowing of the supraspinatus outlet, and irregular contour and heterogenous signal of anterosuperior glenoid larum, which precluded exclusion of an underlying labral tear. A VA examination of May 2007 adopted the veteran's history that he injured his right arm in service during a parachute jump when he got tangled in a tree. The veteran maintained that he has suffered right shoulder pain since that time, and that his baseline of pain is 9 on a scale of 1 to 10, with 10 being the worst pain, and that when he uses his right shoulder, the pain is 10. The veteran maintained that the precipitating pain factors include lifting his arm to shoulder height, attempting to lift a heavy object with the right arm, using any type of tool with the right arm, and putting on and taking off a T-shirt. The veteran had right shoulder abduction with pain at 10 to 65 degrees, and flexion at 10 to 72 degrees, with right shoulder internal rotation 30 to 47 degrees and right shoulder external rotation 30 to 50 degrees. The diagnosis was right shoulder rotator cuff tear and right shoulder degenerative joint disease. The physician opined that while there was evidence of a fall in service with an extended arm which could possibly have caused injury to the right shoulder, no evaluation or treatment of the right shoulder was performed in service. Further, the examiner noted that the veteran did not complain of right shoulder pain from the time of release from military service until some 20 years later, and that the damage seen in the right shoulder more likely happened somewhere after release from service, possibly while working as a mechanic. The examiner also opined that considering the veteran was right- handed, if he had injured his right shoulder in service, he could not have worked as a mechanic, and therefore, that the veteran's right shoulder disorder occurred after service, and was not as likely as not related to his military service. In this case, the evidence is negative for post-service complaints, treatment, or findings regarding right shoulder disorder until the veteran's VA treatment of September 1993, which is, notably, almost 24 years after the in-service injury. Because there is no evidence of arthritis of the right shoulder manifesting to a compensable degree within a year of service, the veteran's claim for a right shoulder disorder cannot be maintained on a presumptive basis. 38 C.F.R. 3.307(a)(3). The evidence weighing in favor of the veteran is in-service training as a parachutist, as noted on his DD Form-214, which is an activity in general that could have involved right shoulder injury, and the veteran's specific in-service May 1969 treatment for a right elbow injury, that also could have involved the shoulder. Additional evidence weighing in his favor are VA right shoulder treatment records of September 1993 to May 2003, and the veteran's recent assertions since May 2002, when he filed his claim, that he sustained a right arm injury in service, and now has a right shoulder disorder related to it. The evidence weighing against the veteran's claim includes the absence of service medical record evidence of complaints, findings, or treatment for right shoulder disorder; the service separation examination report showing no complaints or abnormalities of the right shoulder; and the absence of post-service evidence of any complaints, findings, or treatment for right shoulder disorder until nearly 24 years after service. The Federal Circuit has determined that a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim. Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In view of the lengthy period without treatment, there is no evidence of continuity of symptomatology and this weighs against the claim. Id. Additionally, there is competent medical evidence and opinion provided by the VA physician of May 2007, who had reviewed the claims file, that the veteran could not have worked as a mechanic post-service for the length of time he did, with a right shoulder disorder, and that the veteran's right shoulder disorder was not as likely as not related to service. In weighing the evidence, the Board finds that the absence of on-going right shoulder symptoms or disorder in service or upon separation from service and immediately after service, outweigh the veteran's more recent treatment for right shoulder disorder. Thus the Board finds that the preponderance of the evidence is against the veteran's claim that his right shoulder disorder occurred in service. Assuming arguendo the veteran had service medical record documentation that he injured his right shoulder, as to the question of medical nexus, in May of 2007 a VA physician, with a review of the veteran's service medical records and VA medical records opined that it was not as likely as not that the fall the veteran had in service resulted in shoulder disorder many years later. For these reasons, the Board finds that a preponderance of the evidence is against the veteran's claim, and the claim must be denied. 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; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Service connection for right shoulder disorder is denied. ____________________________________________ A. BRYANT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs