Citation Nr: 0812130 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 06-13 775 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in No. Little Rock, Arkansas THE ISSUES 1. Propriety of the finding that the veteran was a fugitive felon resulting in termination of compensation payments for the period December 27, 2001 to April 4, 2005. 2. Entitlement to service connection for a right shoulder injury. ATTORNEY FOR THE BOARD David Traskey, Associate Counsel INTRODUCTION The veteran had service in the Arkansas Army National Guard from September 1980 to January 1985 with active service from July 1981 to May 1982. This matter came before the Board of Veterans' Appeals (Board) on appeal from decisions of February 2003 and March 2005 by the Department of Veterans Affairs (VA) North Little Rock, Arkansas, Regional Office (RO). The veteran requested a Travel Board hearing in connection with his claim of entitlement to service connection for a right shoulder injury. The hearing was initially scheduled for July 2005, but the veteran requested that the hearing be rescheduled due to transportation problems. The hearing was subsequently rescheduled for October 2005. In September 2005, the veteran submitted a statement to VA in which he withdrew his request for a hearing. The issue of entitlement to service connection for a right shoulder injury was previously before the Board of Veterans' Appeals in March 2006, but was subsequently remanded for the issuance of a Statement of the Case. See Manlincon v. West, 12 Vet. App. 238 (1999). The case is now before the Board for final appellate consideration. FINDINGS OF FACT 1. The evidence of record does not establish that the veteran met the definition of a fugitive felon. 2. The competent and probative evidence of record does not show that the veteran currently has a right shoulder injury, and in the alternative, any current right shoulder injury is not related to a period of active duty for training or inactive duty for training. CONCLUSIONS OF LAW 1. The veteran was not a fugitive felon and the termination of his disability compensation was not proper. 38 U.S.C.A. § 5313B (West 2002); 38 C.F.R. § 3.665(n) (2007). 2. The criteria for establishing entitlement to service connection for a right shoulder disability are not met. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Fugitive Felon Status A veteran eligible for compensation benefits may not be paid such benefit for any period during which he is a fugitive felon. See 38 U.S.C.A. § 5313B (West 2002). The implementing regulation, 38 C.F.R. § 3.665(n) (2007), provides: (1) Compensation is not payable on behalf of a veteran for any period during which he or she is a fugitive felon. Compensation or DIC is not payable on behalf of a dependent of a veteran for any period during which the veteran or the dependent is a fugitive felon. (2) For the purposes of this section, the term fugitive felon means a person who is a fugitive by reason of: (i) Fleeing to avoid prosecution, or custody or confinement after conviction, for an offense, which is a felony under the laws of the place from which the person flees; or (ii) Violating a condition of probation or parole imposed for commission of a felony under Federal or State law. (3) For purposes of paragraph (n) of this section, felony includes a high misdemeanor under the laws of a State which characterizes as high misdemeanors offenses that would be felony offenses under Federal law. (4) For purposes of paragraph (n) of this section, the term dependent means a spouse, surviving spouse, child, or dependent parent of a veteran. While the term "fugitive" is not specifically defined by the governing statute and regulation, Black's Law Dictionary (8th ed. 2004) defines "fugitive" as a person who flees or escapes; a refugee; or as a criminal suspect or a witness in a criminal case who flees, evades, or escapes arrest, prosecution, imprisonment, service of process, or the giving of testimony, especially by fleeing the jurisdiction or by hiding. A beneficiary or dependent who is the subject of a valid outstanding felony arrest warrant is presumed to be a fugitive felon for VA purposes. See M21-MR, Part X, Chapter 16(1)(c). In addressing how fugitive felon status affected payment of VA benefits to dependents, a VA Office of General Counsel opinion noted that the VA fugitive felon provision was modeled after Public Law No. 104-193, which barred fugitive felons from receiving Supplemental Security Insurance from the Social Security Administration (SSA) and food stamps from the Department of Agriculture. VAOPGCPREC 7-2002. It was noted that Public Law No. 104-193 'was designed to cut off the means of support that allows fugitive felons to continue to flee.' Id. The SSA's fugitive felon provision is essentially identical to the VA provision cited above. See 42 U.S.C.A. § 1382(e)(4)(A). The Board has reviewed all the evidence of record in this case. The veteran was granted service connection for chronic anterior cruciate ligament insufficiency, left knee, in a rating decision dated February 2003. The RO evaluated the veteran's disability as 30 percent disabling, effective March 18, 2001. The veteran was also granted service connection for degenerative changes of the left knee in the same rating decision. The RO evaluated the veteran's disability as 10 percent disabling, effective March 18, 2001. The RO received notice of an outstanding warrant for the veteran from the VA Office of the Inspector General (OIG) in January 2005. The warrant was issued in Coupeville, Washington (Island County) in December 1998 for obstructing justice. The RO notified the veteran by way of a January 2005 letter that he had been identified as a fugitive felon because he was the subject of an outstanding warrant. The RO provided information pertaining to the warrant and notified the veteran that his compensation benefits would be terminated as of December 27, 2001 unless the RO received evidence that the warrant had been cleared within 60 days of the date of this letter. The veteran's benefits were subsequently terminated after he failed to provide the requested evidence. The veteran was notified of this determination in a letter from VA dated March 2005 and timely perfected his appeal. The veteran submitted a statement to VA in May 2005 in which he stated that he was unaware of the outstanding warrant until he was notified of it by VA. In June 2005, the veteran submitted another statement to VA in which he recounted the events that allegedly led to the issuance of the warrant. The veteran indicated that he was in Washington visiting his sister and an argument ensued between them. He took her car so that he could "cool off." The police subsequently found the veteran and arrested him. The veteran stated that he was sentenced to jail, ordered to pay a fine, and told to leave the state after serving his sentence. The veteran further indicated to VA in an undated letter that he was sentenced to 13 days in jail, got time served, was ordered to pay a $500 fine, and leave the state of Washington upon release from custody. The veteran also stated that he was aware that he owed money to the Island County Clerk. Attached to the veteran's statement is a copy of a letter from the Island County Clerk dated April 1997. The letter was addressed to the veteran and stated "[y]ou have failed to make a payment for 7 months. Failure to pay is a violation of your court order and will result in action by the DOC. Please mail payment immediately." A copy of a Motion and Order to Quash Warrant dated April 2005 is associated with the veteran's claims file. The order states in pertinent part: THIS MATTER having come on for hearing upon the motion of the prosecuting attorney for an order quashing bench warrant heretofore entered in this cause, and the court having examined the records and files therein and being fully advised in the premises, NOW THEREFORE, IT IS HEREBY ORDERED that the bench warrant issued herein on December 21, 1998, be and the same hereby is quashed and terminated. IT IS FURTHER ORDERED that the above- signified law enforcement agency [the Island County Sheriff's Office] shall immediately remove the above-referenced warrant from any criminal database and/or warrant filing systems. Superior Court, Island County Washington, Motion and Order to Quash Warrant, dated this 4 date of April 2005. The RO notified the veteran in a January 2006 Statement of the Case that his disability compensation award was reinstated as of April 4, 2005, but that he was not entitled to payment beginning on that date due to an overpayment of benefits. Given the evidence of record, the Board finds that the veteran does not meet the definition of a fugitive felon. Thus, terminating his disability compensation award on this basis was not proper. As the evidence of record does not show that the veteran violated a condition of probation or parole, the only definition of fugitive felon that may apply in this case is the one providing that a fugitive felon is a person "fleeing to avoid prosecution" for an offense which is a felony under the laws of the place from which the person flees. Both the controlling statute and the regulation specifically include the intentional act of "fleeing to avoid prosecution" as a condition of finding fugitive felon status. As alluded to above, flight or hiding is also necessary to meet the legal definition of fugitive. See Black's, supra. To engage in an intentional act of fleeing from prosecution, the veteran would first have to know that he was facing prosecution. The Board's finding that an individual must have at least some knowledge of prosecution before he can be found to be fleeing from such is consistent with the interpretation by several federal courts of the essentially identical SSA fugitive felon provision. In December 2005, the Second Circuit Court of Appeals found that in order for a person to be fleeing prosecution under the statute: [T]here must be some evidence that the person knows his apprehension is sought. The statute's use of the words 'to avoid prosecution' confirms that for 'flight' to result in a suspension of benefits, it must be undertaken with a specific intent, i.e., to avoid prosecution. Oteze Fowlkes v. Adamec, 432 F.3d 90, 96-97 (2nd. Cir. 2005). Here, there is no evidence that the veteran knew that his apprehension was sought. See also Garnes v. Barnhardt, 352 F. Supp. 2d 1059 (N.D. Cal. 2004); Hull v. Barnhart, 336 F. Supp. 2d 1113 (D.Or. 2004)(finding that an intent to avoid prosecution was required for a fugitive felon finding under the SSA statute). In both decisions, the District Court found the SSA's interpretation that the mere presence of a warrant was sufficient to establish fugitive felon status contradicted the underlying statute and regulations applicable to SSA benefits. The Board finds that the same reasoning is applicable in this case. The record does not show that the veteran received any notice that he was going to be prosecuted. Without such notice, there can be no finding that he engaged in the intentional act of "fleeing from prosecution." The veteran admitted to VA in an undated statement that he knew he was delinquent in his payments to the Island County Clerk. The veteran provided to VA a copy of a letter from the Island County Clerk dated April 1997 which notified the veteran that "[f]ailure to pay is a violation of your court order and will result in action by the DOC." However, there is no evidence of record to indicate that the veteran was aware of the December 1998 warrant until he was notified by VA of its existence. The veteran also indicated that he was told to leave the state after his release from custody. Furthermore, the veteran contacted the Island County Clerk approximately ten days after he received notice of the outstanding warrant from VA. Documentation associated with the veteran's claims file reveals that he enrolled in a collections program in January 2005 that allowed him to repay his financial obligations in monthly installments. The Board also notes that the veteran has strong ties to Arkansas. He returned to Arkansas following his discharge from service. Prior claims for VA compensation filed by the veteran originated from Arkansas, and all of the correspondence related to the issues currently on appeal was mailed to the veteran in Arkansas. There is also no evidence of record to show a change of address to any location outside of Arkansas. The Board is not charged with determining whether the veteran had engaged in criminal conduct, but only with whether he may be considered a "fugitive felon" under controlling statute and regulation. The actions described above do not reflect the intentional act of "flight from prosecution" necessary to establish fugitive felon status. Moreover, it is not shown that prior to January 2005 he was aware of the December 1998 warrant. Consequently, the veteran cannot be considered to have been a fugitive felon under the controlling statute and regulation. As the veteran is not shown to have been a fugitive felon from December 27, 2001 to April 4, 2005, the termination of his compensation payments for that period of time was not warranted. II. Right Shoulder Injury Service connection may be granted for disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131. Service connection may also be granted for a disability resulting from disease or injury incurred in or aggravated while performing active duty for training, or an injury incurred in or aggravated while performing inactive duty training. See 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. The term "active military, naval, or air service" includes active duty, and "any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24) (West 2002); 38 C.F.R. § 3.6(a) (2007); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). Active duty for training is defined, in part, as "full-time duty in the Armed Forces performed by Reserves for training purposes." 38 U.S.C.A. § 101(22) (West 2002); 38 C.F.R. § 3.6(c) (2006). The term inactive duty training is defined, in part, as duty, other than full-time duty. 38 U.S.C.A. § 101(23) (West 2002); 38 C.F.R. § 3.6(d) (2007). Service connection is not warranted for diseases unless the individual was on active duty or active duty for training at the time of the disablement or death due to the injury or disease. See Brooks v. Brown, 5 Vet. App. 484, 485 (1993); VAOPGCPREC 86-90. "Injury" is defined as harm resulting from some type of external trauma and "disease" is defined as harm resulting from some type of internal infection or degenerative process. VAOPGCPREC 4-2002. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service occurrence 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 disability. Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a) (2007). If a chronic disorder, such as arthritis, is manifest to a compensable degree within one year after separation from service, the disorder may be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. However, the advantage of this evidentiary presumption does not extend to periods of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve veteran status for purposes of that claim."). Service connection may, however, still be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The veteran's DD-214 form shows that he served on active duty from July 1981 to May 1982. The veteran contends that he sustained a right shoulder injury in basic training. In particular, the veteran contends that he received a "shot" in his right shoulder which "missed [sic] my shoulder bone up." The veteran stated in his substantive appeal that he could not "throw or swing my arm too fast." He also reported difficulty completing arm exercises as well as problems with his shoulder "popping" out of its socket. The Board has reviewed all of the evidence of record in this case. Service medical records (SMRs) associated with the veteran's claims file show no evidence of a diagnosis of or treatment for a right shoulder injury. The first pertinent post-service treatment note is dated December 1989. The veteran presented to Crittenden Memorial Hospital (CMH) at that time with concerns of right shoulder pain after running into a tree. X-rays of the right shoulder administered during this visit were interpreted to show no evidence of fracture or dislocation. The veteran was prescribed the use of a shoulder brace and instructed to return to the emergency room if the pain returned. No references to the veteran's military service were contained in this treatment note. The veteran again sought care at CMH in December 1992 after he dislocated his right shoulder as he tried to lay down. X- rays administered at that time were interpreted to show anterior and inferior dislocation of the humeral head of the glenoid fossa. No evidence of fracture was noted. Additional x-rays were taken after the veteran's right shoulder was "relocated." The x-rays were interpreted to show satisfactory relocation of the glenohumeral alignment. The veteran was instructed to wear a shoulder immobilizer and apply ice treatments. No references to the veteran's military service were contained in this treatment note. Similarly, the veteran sought care at CMH in September 1996 after he dislocated his right shoulder. X-rays taken at that time were interpreted to show no definite acute bone or joint abnormality. The veteran was instructed to treat his injured right shoulder with ice. No references to the veteran's military service were contained in this treatment note. The veteran was treated at CMH in January 2006 for multiple stab wounds and right shoulder pain. X-rays taken at that time were interpreted to show no acute osseous abnormalities. The radiologist indicated that there may have been evidence of an old "impactive" injury on the lateral aspect of the greater tuberosity. The acromioclavicular joints, glenohumeral joints, and soft tissues appeared normal. The veteran was diagnosed as having right shoulder pain. Again, no references to the veteran's military service were contained in this treatment note. Given the evidence of record, the Board concludes that the preponderance of the evidence is against a finding of service connection for a right shoulder disability. The veteran's SMRs are negative for a diagnosis of or treatment for a right shoulder disability, nor is there any post-service treatment records which show that the veteran has a currently diagnosed right shoulder disability. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The United States Court of Appeals for Veterans Claims (Court) has in the past held that there must be a diagnosis of an underlying disability to establish a claim for service connection. Pain alone is not a disability. Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999), vacated in part and remanded on other grounds sub nom., Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Furthermore, the Board notes that at no time during the pendency of this appeal has the veteran demonstrated, nor does the evidence show, that he has a current right shoulder disability. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007)(noting that the requirement of a current disability is satisfied when the claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim and that a claimant may be granted service connection even though the disability resolves prior to the Secretary's adjudication of the claim). The Board notes that the veteran filed his claim for compensation in this case in March 2001. The Board also notes that the Court has in the past held that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, the Court has also held that lay persons, such as the veteran, are not qualified to offer an opinion that requires medical knowledge, such as a diagnosis or an opinion as to the cause of a disability. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir 2007) (holding that a layperson may provide competent evidence to establish a diagnosis where the lay person is "competent to identify the medical condition"). Here, the veteran is capable of indicating that his right shoulder was painful, but the veteran is not competent to offer an opinion as to the cause of his claimed right shoulder disability. As previously stated, entitlement to service connection requires a finding that there is a current disability that has a relationship to an in-service injury or disease. In the instant case, there is no competent medical evidence showing a medical diagnosis of a current right shoulder disability during the pendency of this appeal. While the Board acknowledges that the veteran dislocated his right shoulder on more than one occasion in the past, there is no currently diagnosed disability associated with these injuries. The relevant treatment records do not indicate any residual problems related to these dislocations. Therefore, the veteran's claim for service connection must be denied in the absence of any current clinical evidence confirming the presence of the claimed disability. In the alternative, even if the veteran had a currently diagnosed right shoulder disability, his claim ultimately fails in this instance pursuant to Hickson because there is no medical or lay evidence of in-service occurrence, nor is there medical evidence of a nexus between the claimed in- service disease or injury and the present disability. The veteran's claims file is devoid of any suggestion that a current right shoulder injury is related to service. Similarly, no evidence exists to show that the veteran sought and/or received treatment for his claimed right shoulder injury until nearly four years after discharge from service. The United States Court of Appeals for 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). Here, it would be speculative to link any current right shoulder injury to factors in service given the evidence of record. Service connection may not be based on a resort to pure speculation or even remote possibility. See 38 C.F.R. § 3.102 (2007). The service medical records do not reflect treatment for or a diagnosis of a right shoulder injury. A right shoulder injury was not present during service, and no competent evidence of record shows that a current right shoulder disability developed after service as a result of a service- related incident. Moreover, although the veteran has asserted that he sustained an injury in service, the evidence of record does not show continuity of symptomatology of right shoulder problems in the years immediately after service. Accordingly, the Board finds that a right shoulder injury was not incurred in service. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the veteran's claim, that doctrine is not applicable in the current appeal. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1991); Alemany v. Brown, 9 Vet. App. 518 (1996). Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 veteran 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 veteran 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 veteran is expected to provide; and (4) must ask the veteran 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). Here, the duty to notify was satisfied prior to the initial unfavorable decision on the claim by the AOJ. Letters from the RO dated March 2001 and August 2001 informed the veteran of the type of evidence needed to substantiate his service- connection claim as well as an explanation of what evidence the veteran was to provide to VA in support of his claim and what evidence VA would attempt to obtain on his behalf. While the letters did not explicitly ask that the appellant provide any evidence in his possession that pertains to the claim, as per § 3.159(b)(1), he was repeatedly advised of the types of evidence that could substantiate his claim and to ensure that VA receive any evidence that would support the claim. Logically, this would include any evidence in his possession. The Board further observes that during the pendency of this appeal, on March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held 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. Those five elements include: 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. In the present appeal, the veteran was provided with notice of what type of information and evidence was needed to substantiate his claim for service connection, and he was provided with notice, via a letter dated March 2006, of the type of evidence necessary to establish a disability rating and an effective date for the disability on appeal. The case was then readjudicated by way of an April 2006 statement of the case. The Board also finds that all of the relevant facts have been properly developed, and that all available evidence necessary for an equitable resolution of the issue has been obtained. The veteran's service medical records have been obtained. The veteran's post-service treatment records have been obtained. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the Court has stated that this element establishes a low threshold and requires only that the evidence "indicates" that there "may" be a nexus between the current disability or symptoms and the veteran's service. The types of evidence that "indicate" that a current disability "may be associated" with military service include, but are not limited to, medical evidence that suggests a nexus, but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). In this case, the first element to be addressed when determining whether a VA examination is required to substantiate the veteran's service connection claim is whether there is competent evidence of a current disability. The medical records do not indicate that the veteran has a current disability. However, for the sake of completeness, the Board will address the remainder of the elements as if the veteran has a current disability. The second element to be addressed is whether the evidence establishes that the veteran suffered an in-service event, injury or disease. In this case, the veteran claims that his right shoulder injury is related to service. However, the service medical records do not reflect any treatment for such an injury. The third element is whether the evidence indicates that a disability may be associated with service or another service-connected disability. In this case, there is no competent evidence linking a right shoulder injury to any incident of service. The fourth element is whether there is sufficient competent medical evidence of record to make a decision on the claim. As the Board ultimately finds in this case that the preponderance of the evidence weighs against the veteran's claim for service connection, a VA examination is not required in this case. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the veteran's claim. Therefore, no further assistance to the veteran with the development of the evidence is required. ORDER The termination of VA disability compensation from December 27, 2001 to April 4, 2005 was not proper. Service connection for a right shoulder injury is denied. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs