Citation Nr: 0810758 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 05-14 962 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Togus, Maine THE ISSUE Entitlement to service connection for a left shoulder disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD Chris Yegen, Associate Counsel INTRODUCTION The veteran served on active duty from October 1958 to September 1959. He also served in the Rhode Island National Guard from October 1965 to October 1968. This appeal to the Board of Veterans' Appeals (Board) arose from a May 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Togus, Maine. In February 2006, a hearing was held at the RO before a local Decision Review Officer (DRO). Later that year, in December 2006, the veteran also testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) of the Board. The Board remanded this case in June 2007 for additional development and consideration. FINDINGS OF FACT 1. The veteran's service medical records and Rhode Island National Guard records make no reference to any left shoulder disorder. 2. A rather recent VA examination in April 2005 and an October 2007 addendum, post remand, concluded that his vigorous training in the military did not measurably alter the inexorable progression or natural course of the underlying disease and, as such, is not etiology related to events during his active military service. 3. Other records show the veteran sustained two intercurrent injuries to his left shoulder from significant falls in October 1995 and March 2005. CONCLUSION OF LAW The veteran's left shoulder disorder was not incurred in or aggravated by service and may not be presumed to have been. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. The Duties to Notify and Assist VA has complied with the duty-to-notify provisions of the Veterans Claims Assistance Act (VCAA). 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 197 (2002). In particular, letters from the RO and Appeals Management Center (AMC) in October 2003, March 2005 and June 2007 (1) informed the veteran of the information and evidence not of record that is necessary to substantiate his claim; (2) informed him of the information and evidence that VA would obtain and assist him in obtaining; (3) informed him of the information and evidence he was expected to provide; and (4) requested that he provide any evidence in his possession pertaining to his claim, or something to the effect that he should "give us everything you've got pertaining to your claim." Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). VA also has complied with the Court's holding in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007), which states that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service-connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The RO and AMC complied with the requirements in Dingess when it sent a VCAA notice letter in March 2006 discussing the downstream disability rating and effective date elements of the claim and then went back and readjudicated the claim in the March 2006 and November 2007 supplemental statements of the case (SSOCs). This is important to point out because the Federal Circuit Court recently held that a statement of the case (SOC) or supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, 07-7130 (Fed. Cir. September 17, 2007) (Mayfield IV). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Even if arguably there is any deficiency in the notice to the veteran or the timing of the notice it is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board had erred by relying on various post- decisional documents for concluding that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the appellant, but determining nonetheless that the evidence established the veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claims, so found the error was harmless). If there was any deficiency in the notice to the veteran, the Board finds that the presumption of prejudice on VA's part has been rebutted: (1) based on the communications sent to him over the course of this appeal, and his responses, he clearly has actual knowledge of the evidence he is required to submit and needed to substantiate his claim; and (2) based on his contentions he is reasonably expected to understand from the notices what was needed. See Sanders v. Nicholson, 487 F.3d 881 (2007). VA also fulfilled its duty to assist by obtaining all relevant evidence concerning the claim under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. The RO and AMC obtained all pertinent medical records the veteran and his representative identified, including following the Board's June 2007 remand. In addition, VA furnished the veteran a compensation examination (including obtaining a supplemental opinion) to determine the etiology of his left shoulder disorder. See McLendon v. Nicholson, 20 Vet. App. 79 (2006), citing 38 U.S.C.A. § 5103A(d) and 38 C.F.R. § 3.159(c)(4). Accordingly, the Board finds that no further assistance is needed to meet the requirements of the VCAA or Court. There is one final preliminary point worth mentioning. On his November 2007 SSOC notice response form, the veteran indicated that he "might" be able to obtain additional medical evidence supporting his claim - including in particular the report of a magnetic resonance imaging (MRI) of his left shoulder to be done either at the local VA Medical Center (VAMC) or elsewhere. But he also indicated that his obtaining this additional evidence depended on the cooperation of the doctors he listed. The form pointed out that he had 60 days to identify the whereabouts of this additional evidence or to submit it himself. Unfortunately, he did not do either. Therefore, the Board is not required to further delay the adjudication of his claim because this would be an unreasonable request and tantamount to a fishing expedition based on no more than a speculative hope that relevant evidence would be found. See, e.g., Gobber v. Derwinski, 2 Vet. App. 470 (1992). II. Whether the Veteran is Entitled to Service Connection for a Left Shoulder Disorder The veteran contends he has a left shoulder disorder from rigorous military physical training that included calisthenics, marching with heavy rucksacks and additional mistreatment and physical abuse. He also alleges that his symptoms of tightness and twitching in this shoulder began in May or June 1959 during service. He claims, as well, that these symptoms have persisted during the many years since and have progressed to include arthritis and resulting pain. Service connection is granted for disability resulting from disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). In general, service connection requires: (1) medical evidence of 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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Certain conditions involving what are generally recognized as diseases of a chronic nature, such as arthritis, will be presumed to have been incurred in service if manifested to a compensable degree of at least 10 percent within one year after service. This presumption, however, is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A pre-existing injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). It is the Secretary's burden to rebut the presumption of in-service aggravation. See Laposky v. Brown, 4 Vet. App. 331, 334 (1993); Akins v. Derwinski, 1 Vet. App. 228, 232 (1991). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b); Falzone v. Brown, 8 Vet. App. 398, 402 (1995). Temporary or intermittent flare-ups of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted with symptoms, has worsened. Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Accordingly, "a lasting worsening of the condition" - that is, a worsening that existed not only at the time of separation but one that still exists currently is required. See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). In July 2003, VA's General Counsel issued a precedent opinion holding that in order to rebut the presumption of soundness in 38 U.S.C.A. § 1111, VA must demonstrate by clear and unmistakable evidence both that the disease or injury in question existed prior to service and that it was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. This holding replaced the previous standard under 38 C.F.R. § 3.304(b), which had required that if a condition was not noted at entry but was shown by clear and unmistakable evidence to have existed prior to entry, the burden then shifted to the claimant to show that the condition increased in severity during service. The veteran's service medical records and Rhode Island National Guard records make no reference to any left shoulder disorder. Indeed, he acknowledged as much during his RO hearing in February 2006 and his Board video conference hearing in June 2007. Hence, his service medical records and National Guard records provide probative evidence against his claim as they do not show any injury or resulting disability specifically referable to his left shoulder, much less a "chronic" residual disability. Continuity of symptomatology after service is required where the condition noted in service is not chronic or this is legitimately questionable. 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. See Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). There is no objective clinical indication of arthritis either during service or even within the one-year presumptive period after the veteran's military service ended. Indeed, there are no private or VA treatment records suggesting a left shoulder disorder until November 1987. So he is not entitled to application of the presumptive provisions for this condition. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 U.S.C.A. §§ 3.307, 3.309. One of the reasons the Board remanded this case in June 2007 was to try and obtain additional evidence showing the veteran had relevant complaints or received treatment for his left shoulder during the years immediately after his service ended. But unfortunately, the remand did not result in any additional evidence suggesting he had a left shoulder disorder prior to 1987. And as also already alluded to, to determine the etiology of his claimed disability - and, more specifically, whether it is somehow attributable to his military service, VA had the veteran undergo a compensation examination in April 2005. When examined, he complained of pain, cracking noises on motion (i.e., crepitus), and stiffness at the extreme range of motion. Range of motion testing exhibited flexion bilaterally to 170 degrees with increased pain and stiffness. Abduction was the same with good strength against gravity and resistance, and internal rotation was to 65 degrees bilaterally. Repetitive motion testing increased the pain and the limitation of motion. Objective findings indicated good overall strength with a motor assessment of 5/5. The radial pulse bilaterally was strong and well maintained. Digital strength and pinch bilaterally were 5/5. Sensation showed normal feeling in the right hand, but the veteran claimed episodes of numbness in the left. X-rays revealed impingement syndrome bilaterally with spur formation. With respect to the left shoulder, there were periarticular hypertrophic bone changes affecting the left acromioclavicular (AC) joint and markedly the inferior surface of the left acromion. The glenohumeral joint bilaterally was well preserved, but there was contact sclerosis affecting each lateral acromion as well as the humeral tuberosity. The examiner diagnosed chronic degenerative impingement syndrome, both shoulders, hypertrophic degenerative joint disease, right and left acromioclavicular joints and hypertrophic periarticular arthritis, left shoulder. The examiner indicated these changes have evolved over many years and that the natural progression of this pathology was not affected or altered by the veteran's relatively brief stint in service. The examiner explained that the veteran's regular calisthenics and stretching exercises had helped preserve the function of his rotator cuffs and his range of motion indicating the training exercises in the military would have a beneficial effect on his left shoulder disorder rather than a detrimental one. Consequently, the examiner determined the veteran appears to have a strong congenital predilection to premature aging or wearing of major joints. Congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation and, therefore, generally cannot be service connected as a matter of express VA regulation in the absence of additional disability due to aggravation by a superimposed condition. 38 C.F.R. §§ 3.303(c), 4.9. See also VAOPGCPREC 82-90 (O.G.C. Prec. 82-90); Monroe v. Brown, 4 Vet. App. 513, 514- 515 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90 (July 18, 1990); and VAOPGCPREC 11-1999 (Sept. 2, 1999). Pursuant to the Board's June 2007 remand, VA obtained an addendum by the same examiner to determine whether the veteran's left shoulder disorder is traceable to his military service. After another review of the veteran's claims file, the examiner noted the veteran never sought treatment nor did he complain of a left shoulder disorder during service or during the subsequent three years of National Guard duty in Rhode Island. This doctor further explained that, although the subsequently diagnosed pathology may have been present during that time, it is usually bilateral and usually takes many years for this type of generalized condition to develop and is usually an expression of a hypertrophic arthritis that was and is manifested in many other areas of the veteran's body (avascular necrosis of the left hip, cervical spondylosis, and impingement syndrome in the right shoulder). In this regard, the examiner noted that it is possible that during the veteran's vigorous training in the military the left shoulder disorder was transiently and symptomatically aggravated, but it did not measurably alter the inexorable progression or natural course of the underlying disease. So this examiner ultimately determined this disorder is not etiologically related to events in service. Hence, this doctor implies that the possible transient flare-ups in the veteran's left shoulder during service - even if one presumes for the sake of argument they occurred, nevertheless did not cause a permanent residual or chronic disability. That is to say, his military service did not aggravate any pre-existing condition he may have had beyond its natural progression. So despite the fact that this rather recent VA examination confirmed the veteran has a left shoulder disorder, the currently claimed disability, there is no persuasive medical nexus evidence linking this condition to his military service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service."). See also, Maggitt v. West, 202 F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); and Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). The VA compensation examiner was unable to find such a relationship. As the Board readily acknowledged when remanding this case in June 2007 for the additional development mentioned, the veteran is competent to state that he has experienced twitching, pain and other symptoms referable to his left shoulder disorder since service. The supporting lay statements from his two brothers and family friend also are competent to note his twitching since service because this is capable of personable observation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and Layno v. Brown, 6 Vet. App. 465, 469 (1994). See also 38 C.F.R. § 3.159(a)(2). Nevertheless, that said, their competent testimony concerning this is not credible since it is in stark contrast to his service and National Guard records and the lack of any competent medical evidence showing complaints of or treatment for a left shoulder disorder until November 1987. It therefore stands to reason that had he, in fact, sustained a left shoulder injury during service in the manner alleged there would at least have been some mention of this in his service medical or National Guard records, but there clearly was not. Indeed, on remand, the AMC searched for any VA records or Social Security Administration (SSA) records indicating complaints of or treatment for a left shoulder disorder after service (1959) and before November 1987 (first treatment for a left shoulder disorder). However, neither VA nor SSA found any records during this time frame. In addition, the veteran's VA outpatient treatment records note two incurrent injuries to his left shoulder after service in October 1995 and in March 2005. Indeed, the October 1995 VA outpatient record indicates he had sustained an injury after a recent fall on both his shoulders. An X- ray revealed minimal degenerative changes. The March 2005 VA outpatient treatment record also indicates that, within the last few immediately preceding weeks, the veteran had sustained trauma from a fairly significant fall injuring his left knee, left hip, left shoulder and neck. The Federal Circuit Court has held that a lapse of many years after the events in question during service and the initial manifestation of symptoms after service is probative evidence to be considered in deciding a service-connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). And, here, there was no objective clinical indication of a left shoulder disorder for many years after service, indeed decades, well beyond the one-year grace period following service for concluding the veteran had left shoulder degenerative joint arthritis that would otherwise permit presumptively relating this condition to his military service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. § 3.307, 3.309. In conclusion, for these reasons and bases, the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for a left shoulder disorder. And since the preponderance of the evidence is against his claim, there is no reasonable doubt to resolve in his favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Accordingly, the Board must deny his appeal. ORDER The appeal is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs