Citation Nr: 0812215 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 04-41 901 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to service connection for a left shoulder disability, to include as secondary to a service-connected right shoulder disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. D. Watson, Associate Counsel INTRODUCTION The veteran served on active duty from May 1976 to May 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 RO decision, which denied service connection for a left shoulder disability. In September 2005, the veteran testified at a videoconference hearing before the undersigned. A transcript has been associated with the file. In June 2006, the Board remanded the veteran's claim for additional development. It now returns for appellate consideration. FINDING OF FACT The preponderance of the evidence is against a causal link between the veteran's current left shoulder disability and either an in-service left shoulder injury or a service- connected right shoulder disability; furthermore, there is no evidence of degenerative arthritis of the left shoulder within a year after the veteran's separation from service. CONCLUSION OF LAW A left shoulder disability was not incurred in or aggravated by service, and degenerative arthritis of the left shoulder may not be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the veteran's claims folder, and has an obligation to provide reasons and bases supporting this decision. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that 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) request that the claimant provide any evidence in his possession that pertains to the claim. Prior to initial adjudication of the veteran's claim, a letter dated in August 2004 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim, and he was told to provide any relevant evidence in his possession. See Pelegrini II, at 120-121. Since the Board has concluded that the preponderance of the evidence is against the claim for service connection, any questions as to the appropriate disability rating or effective dates to be assigned are rendered moot, and no further notice is needed. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. In June 2006, the Board remanded the veteran's claim to, among other things, afford the veteran another chance to provide names, addresses, and dates of treatment of all health care providers who treated his left shoulder disability. In June 2006, the veteran's representative responded to the RO's request for this information with the statement that the veteran had no additional evidence to submit. The veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to his claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. In this case, it is noted that the Board remanded the veteran's claim in June 2006 to obtain a VA examination and opinion as to the etiology of any current left shoulder disability. This medical opinion was obtained in December 2006. This opinion is thorough and will be discussed in detail below. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection The veteran contends that he has a left shoulder disability that was either incurred during service or secondary to his service-connected right shoulder disability. His claim will be considered on both a direct basis, secondary basis, and presumptive basis in order to afford him every possible consideration. Having carefully considered the claim in light of the record and the applicable law, the Board finds that the preponderance of the evidence is against the claim for service connection, and the weight of the evidence is against a finding that the veteran's current left shoulder disability is related to service on either a direct, secondary, or presumptive basis. Service connection may be established for disability resulting from disease or injury incurred in or aggravated in the line of active military duty. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In addition, service connection may 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). Furthermore, where a veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, and degenerative joint disease (osteoarthritis) becomes manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. With regard to the matter of establishing service connection for a disability on a secondary basis, the Court has held that there must be evidence sufficient to show that a current disability exists and that the current disability was either caused by or aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Additionally, when aggravation of a nonservice-connected disability is proximately due to or the result of a service connected condition, such disability shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Id.; see also 71 Fed. Reg. 52744- 52747 (Sept. 7, 2006). In general, a grant of 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 present disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999); Layno v. Brown, 6 Vet. App. 465 (1994). The medical evidence of record, including August 2004 and December 2006 VA examinations, shows that the veteran has degenerative arthritis of the left shoulder with narrowing of the subacromial space and subluxation of the humeral head. Having thus conceded a current diagnosis of a left shoulder disability, the Board now turns to the question of whether the veteran incurred an injury during service that is productive of his current left shoulder disability. Service medical records show that in September 1995, the veteran reported experiencing a sharp pain in his left upper back when carrying a rucksack. On examination, there was tenderness on palpation of the left scapula, although he did exhibit full range of motion and full strength bilaterally. The examiner's diagnosis was a strain of the left rhomboid major with muscle spasm. Service medical records are thereafter silent as to any left shoulder disability. There is no evidence within one year following termination of the veteran's active service that he had degenerative joint disease of the left shoulder, or any disability thereof, at that time. A November 2000 VA joints examination report notes that the veteran's healed right shoulder disability was asymptomatic upon examination. A March 2004 VA joints examination report, which includes an April 2004 addendum, notes that the veteran had no symptoms of right shoulder dysfunction on examination, x-rays of the right shoulder showed well mineralized and well maintained joint spaces and revealed a normal right shoulder. The next evidence of the veteran's left shoulder disability comes from an August 2004 VA joints examination report, for which the veteran's claims file was not reviewed. At that examination, the veteran stated that he was not aware of any direct injury to his left shoulder but reported that the pain had worsened over the previous year. Upon examination, the veteran exhibited pain and slight crepitus on range of motion, but without redness, warmth, joint effusion, instability, or muscle spasm. The examiner noted that a July 2004 MRI of the veteran's left shoulder showed degenerative arthritis, and he opined that the veteran's pain in the left shoulder had probably been exacerbated by cervical disk disease and right shoulder problems, which required the veteran to use his left shoulder excessively. Pursuant to a June 2006 Board remand, the veteran was again afforded a VA joints examination, which included a review of the claims file, in December 2006. The report from that examination notes that the veteran claimed he had incurred a left shoulder injury during service, which was thereafter exacerbated by his favoring a service-connected right shoulder injury. The examiner noted pain in the left shoulder on range of motion and with repetitive motion. In his opinion, the examiner opined that the veteran's left shoulder injury was less likely than not caused or aggravated by service or by the veteran's service-connected right shoulder disability. In support of his opinion, the examiner noted that there was no evidence linking a left shoulder disability to any event in military service or to his service-connected right shoulder disability. Furthermore, x- rays of the right shoulder were negative, and thus there was no scientific basis to link the veteran's left shoulder disability to his right shoulder disability, and a decrease in range of motion of the left shoulder could only be explained by submaximal performance by the veteran. In sum, the preponderance of the evidence is against a finding that the veteran's left shoulder disability is related to service on either a direct, secondary, or presumptive basis. Though an August 2004 VA joints examiner opined that the veteran's left shoulder disability was exacerbated by the veteran's service-connected right shoulder disability, his report did not involve a review of the claims file and was largely based on the veteran's own assertions. Moreover, a December 2006 VA joints examination report, which did involve a review of the claims file, found no evidence linking the veteran's left shoulder disability to an in- service injury or to a service-connected right shoulder disability. The Board notes that this report is consistent with other evidence of record, including previous VA examination reports through April 2004, which shows that the veteran's right shoulder disability was completely asymptomatic and would thus not require the veteran to favor his left shoulder and exacerbate any existing left shoulder disability. In addition, there is no evidence that the veteran had degenerative joint disease of the left shoulder within one year following separation from service. In fact, after service medical records showing that the veteran strained his left rhomboid muscle, the first evidence that the veteran had any left shoulder disability comes from an August 2004 VA joints examination report. The passage of many years between discharge from active service and the medical documentation of a claimed disability weighs against the veteran's claim of service connection in this case. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); Shaw v. Principi, 3 Vet. App. 365 (1992). Furthermore, the veteran, as a lay person, has not been shown to be capable of drawing medical conclusions; thus, his statements regarding causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). Consequently, as the preponderance of the evidence shows that the veteran's current left shoulder disability is unrelated to either an in-service injury or to a service-connected right shoulder disability, and as there is no evidence of left shoulder arthritis within a year of active service, the Board concludes that service connection is not warranted for a left shoulder disability. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the veteran's claim, and it must be denied. See Gilbert, supra. ORDER Entitlement to service connection for a left shoulder disability, to include as secondary to a service-connected right shoulder disability, is denied. ____________________________________________ K. PARAKKAL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs