Citation Nr: 0812867 Decision Date: 04/18/08 Archive Date: 05/01/08 DOCKET NO. 05-22 754 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for a left shoulder disorder. 2. Entitlement to service connection for a right leg disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The veteran served on active duty from August 1941 to October 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office in Providence, Rhode Island (RO). The veteran appealed from rating decisions of April 2004 and December 2005, in which, respectively, the RO denied entitlement to service connection for a left shoulder disorder and for a right leg disorder. This case has been advanced on the Board's docket in accordance with the provisions of 38 C.F.R. Section 20.900 (c) (2007). FINDINGS OF FACT 1. The preponderance of the evidence is against a finding that any left shoulder disorder was present in service; that any current left shoulder disorder is related to service; that arthritis of the left shoulder manifested itself to a compensable degree within a year following separation from active duty; or that any current left shoulder disorder was caused or aggravated by service-connected disorder. 2. The preponderance of the evidence is against a finding that any right leg disorder was present in service; or that any current left shoulder disorder is related to service. CONCLUSIONS OF LAW 1. A left shoulder disorder was not incurred in or aggravated during military service, or aggravated by service- connected disorder; and arthritis of the left shoulder may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1112, 1113, 5100, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.310 (2006); 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2007). 2. A right leg disorder was not incurred in or aggravated during military service, or aggravated by service-connected disorder. 38 U.S.C.A. §§ 1110, 1112, 1113, 5100, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act (VCAA) (codified at 38 U.S.C.A. §§ 5100, 5102- 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007)) imposes obligations on VA in terms of its duty to notify and assist claimants. 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 & Supp. 2007); 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), 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Id. In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The VCAA duty to notify was satisfied by a number of letters sent to the veteran between January 2004 and October 2006, which fully addressed all four notice elements. The information contained in these letters informed the veteran of what evidence was required to substantiate a claim for service connection. The veteran was also notified of his and VA's respective duties for obtaining evidence, and was asked to submit evidence and/or information in his possession to the agency of original jurisdiction (AOJ). At least some of the notice letters were sent before the initial AOJ decisions in this matter, thus the Board finds that there was no prejudicial error to the veteran regarding the timing of notice. The veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide this appeal. 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 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. The Board finds that the veteran is not prejudiced by a decision at this time. Any question of appropriate notice pursuant to Dingess is rendered moot by the denial of the claims decided below. The statutory notice required by the VCAA is only one part of the system of notice required and provided in the VA claim adjudication process. See Wilson v. Mansfield, No. 07-7099 (Fed. Cir. October 15, 2007). Under Wilson (citing Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), 38 U.S.C.A. § 5103(a) requires only a generic notice after the initial claim for benefits has been filed and before the initial decision. It does not apply throughout the claim adjudication process as to notice provided after the initial decision; because thereafter, under the system of notice required and provided in the VA claim adjudication process, other forms of notice-such as contained in the rating decision, statement of the case, and supplemental statement of the case-provide the claimant with notice of law applicable to the specific claim on appeal. Id. The RO has provided the veteran such notice to his specific claims throughout the appeal in the respective statements of the case and in multiple supplemental statements of the case. In addition to providing proper notice, VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record service medical records, reports of VA examinations, and VA and private medical records of treatment. There is no indication that any other treatment records exist that should be requested, or that any pertinent evidence has not been received. VA examinations were provided in connection with these claims. For the forgoing reasons, the Board finds that VA has satisfied its duty to notify (each of the four content requirements) and the duty to assist pursuant to the VCAA. See 38 U.S.C.A. §§ 5102 and 5103 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159(b), 20.1102 (2007); Pelegrini, supra; Quartuccio, supra; Dingess, supra. Any error in the sequence of events or the content of the notice is not shown to have any effect on the case or to cause injury to the claimant. Thus, any such error is harmless and does not prohibit consideration of these matters on the merits. See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Service Connection The veteran claims entitlement to service connection for a left shoulder disorder and for a right leg disorder. The veteran claims that he has a left shoulder disorder that is due to his service-connected left elbow and hand disabilities. Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303(a) (2007). To establish service connection, three elements must be met: (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). To establish a 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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, including arthritis may be presumed to have been incurred during service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309 (2007). Service connection may be established on a secondary basis for a disability shown to be proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either caused or aggravated by a service-connected disability. Id.; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Logically, the disorder claimed as the proximate cause of a second disorder must be a "service-connected" disorder. The Court has held that when aggravation of a veteran's non- service-connected disability is proximately due to or the result of a service-connected disease or injury, it too shall be service connected, at least to the extent of the aggravation. Allen, 7 Vet. App. at 439. That is, if a service-connected disability aggravates a nonservice- connected condition, a veteran may be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. Allen, 7 Vet. App. at 448. The provisions of 38 C.F.R. § 3.310 were amended during the pendency of this appeal, effective from October 10, 2006. The new provisions require that service connection not be awarded on an aggravation basis without establishing a pre- aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). VA has indicated that the purpose of the regulatory change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995). However, VA also made clear in the comments to the new regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the nonservice-connected disability before an award of service connection based on aggravation may be made. This had not been VA's practice before, which strongly suggests that the recent change amounts to a substantive change in the regulation. Given the substantive changes, and because the veteran's claim was pending before the regulatory change was made, the Board will apply the version of 38 C.F.R. § 3.310 in effect before the change because that version is more favorable to the claimant. It is more favorable because it does not require the establishment of a baseline before an award of service connection may be made. It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. Lay statements are considered to be competent evidence when describing the symptoms of a disease or disability or an injury that are observable through the senses. However, when the determinative issue involves a question of medical causation, only individuals possessing specialized training and knowledge are competent to render an opinion. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The evidence does not show that the veteran possesses medical expertise and he does not argue otherwise. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) (2005). The Board must assess the credibility and weight of all the 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. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 there is an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107 (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102 (2005). If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. The claims file does contain sufficient medical evidence showing current diagnoses involving the left shoulder and right leg. A January 2004 VA examination report contains diagnoses of status post a left rotator cuff repair, and shoulder symptoms are consistent with a diagnosis of adhesive capsulitis. There is also evidence, discussed below, of osteoarthritis of the left shoulder secondary to the veteran's advanced rotator cuff arthropathy. The report of a June 2007 VA examination contains a diagnosis that the veteran's right leg condition was muscle atrophy as a result of the veteran's stroke or cerebrovascular accident. Because the record contains competent medical evidence of these current disorders-discussed more fully below-and no evidence to the contrary, the Board concedes the presence of such disabilities. Therefore, with respect to the claimed left shoulder disorder and right leg disorder, the question is whether one or both were incurred in or were aggravated by active military service; were shown to be proximately due to, or the result of, a service-connected disease or injury; or, in the case of arthritis, became manifest to a compensable degree within one year of separation from active duty. 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). The service medical records contain no indication of any symptoms in service associated with the claimed left shoulder or right leg disorders; except that a treatment note in July 1945 shows complaints of pains and cramps of both legs for the previous two months, which was diagnosed as myositis. No later service medical records show any complaints, findings, or assessments referable to that condition or any other condition of the left shoulder or right leg. During the October 1945 discharge examination, the examiner made no abnormal findings pertaining to the left shoulder or right leg. Review of the medical records on file shows that post-service medical records consist of VA and private medical records dated from 1946 through July 2007. VA treatment records show that when seen in September 1993 for an unrelated ophthalmology consult, the veteran reported a past medical history of a cerebrovascular accident in 1987 with right leg and arm weakness. None of the competent medical evidence shows the presence of any left shoulder symptoms prior to 1995. VA treatment records in August 1995 show that the veteran was seen for complaints of bilateral shoulder pain, which had been present for several months. The assessment at that time was bilateral shoulder tendonitis unimproved with nonsteroidals. When seen in December 1995, the assessment was shoulder tendonitis, status post steroid injection, painful at times, but improved since injected. A VA treatment record in May 1996 shows that the veteran reported complaints of bilateral shoulder pain. The assessment at that time included degenerative arthritis in the shoulders. A VA treatment note dated in September 1996 contains an assessment of status post CVA: Right leg greater than right arm; stable. A March 1998 VA treatment record includes an assessment of (1) difficulty walking; secondary to previous stroke with right hemiparesis. "I don't detect any localized left (corrected to "right" in addendum) leg weakness"; and (2) left shoulder pain; tenderness over the biceps tendon, decreased range of motion in all directions both active and passive; pain most likely due to biceps tendonitis, possibly adhesive capsulitis. VA treatment records in June 1998 show that the veteran was seen for recurrent pain of the left shoulder. The report contains a diagnostic impression of biceps tendonitis. Private medical records include an August 2003 operative report showing that the veteran underwent surgery on his left shoulder. The report contains a history that the veteran sustained a fall in April 2003 with left shoulder pain and trauma. An MRI showed a rotator cuff tear-a full thickness tear of the supraspinatis with retraction and atrophy of the muscle. The veteran had superior migration of the humeral head; and there was marked tendinopathy and linear signals consistent with partial tearing of the infraspinatus. The report noted that it was felt that the MRI represented more a picture of a chronic rotator cuff injury; but the veteran had had severe pain since the recent fall. The preoperative diagnosis was (1) left shoulder rotator cuff tear; (2) subacromial impingement; and (3) severe AC acromio-clavicular degenerative joint disease. The left shoulder procedure included arthroscopic subacromial decompression; distal clavicle resection; and major debridement of rotator cuff remnants, synovectomy and bursectomy. The post operative diagnosis was the same as prior to surgery except that the rotator cuff tear was further described as massive. In a letter dated in November 2003, Donald E. O'Malley, M.D., stated that the veteran underwent arthroscopic surgery in August 2003, but unfortunately, the cuff could not be repaired and the veteran ended up with a chronic rotator cuff deficient surgery on a rotator cuff deficient shoulder. Dr. O'Malley stated that this would be a chronic condition; which he characterized as a chronic rotator cuff tear of the left shoulder, and unreparable massive tear of the rotator cuff with advancing osteoarthritis of the left shoulder secondary to his advanced rotator cuff arthropathy. A January 2004 VA examination report shows that the examiner examined the veteran's left shoulder and was cognizant of the essential nexus question-of whether the veteran's left shoulder condition and rotator cuff surgery were secondary to his service-connected elbow and hand disabilities. The report contains a medical history that the veteran was quite debilitated, walked with a cane, and required assistance getting to the examination room. The veteran had a cerebrovascular accident 14 years before with right-sided residual. The veteran reported complaints of left shoulder pain and significant weakness, and of trouble using his left upper extremity. X-ray examination showed osteolysis of the acromion of the left shoulder. After examination, the report contains the following diagnosis. The veteran presented as a frail debilitated man with multiple medical issues, including a cerebral vascular accident 14 years ago with right-sided weakness. He was status post a left rotator cuff repair in August 2003 as a result of a fall sustained in April 2003. He suffered many postoperative complications, including mini-strokes with resultant one-month convalescence in a nursing home, and pneumonia. His shoulder symptoms are consistent with a diagnosis of adhesive capsulitis. At the conclusion to the diagnosis, the examiner opined that neither the left rotator cuff tear, nor the fall that precipitated it were secondary to the veteran's left elbow chip fracture or left thumb fracture. The report of a June 2007 VA examination shows that the veteran reported complaints of morning stiffness and aching pain to his calf and to the back of his thighs, which had been occurring for many years. This was progressively becoming worse on the right side. He reported that he had associated symptoms of swelling and soreness. The veteran reported that his symptoms started in the 1950s. The veteran indicated that the symptoms were possibly due to working around weapons and missions during service, but he denied any impact injury to the legs. The examiner noted that the veteran had a history of a cerebrovascular accident that had caused the veteran to become slightly paralyzed to the right side. After examination, the report contains a diagnosis that the condition was muscle atrophy as a result of the veteran's stroke or cerebrovascular accident, which was not service- related. After a full review of the record, the Board finds that the preponderance of the evidence is against granting entitlement to service connection for either of the claimed disorders on appeal. In summary, there is no indication in service of any symptoms in service associated with a left shoulder or right leg disorder. After service, there was no evidence of arthritis within the first year after service. See 38 C.F.R. § 3.307, 3.309. As discussed above, the first indication of any potentially relevant pathologies were in the 1990s, several decades after service, which ended in October 1945. Post-service medical records showing no indication until many years after service are probative evidence against a nexus with service. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). As discussed above, the only medical opinions addressing the current claims are not in favor of the veteran's assertion that he has a left shoulder disorder or a right leg disorder, which are related to service, or-in the case of the right shoulder condition-proximately due to, or the result of, a service-connected disability. Those opinions, contained in the January 2004 and June 2007 VA examination reports, basically are to the effect that the left shoulder disorder and right leg disorder were not related to any event in service; and that the left shoulder disorder was not due to the service-connected left elbow or hand disabilities. There are no countervailing opinions in the veteran's favor. Further, none of the medical evidence on file shows that any arthritis was manifest within the first year after service. Based on the foregoing, the Board concludes that the claims for service connection for a left shoulder disorder and for a right leg disorder, must both be denied. After considering all the evidence, the Board finds that the preponderance of the evidence is against these claims. In reaching this decision, the Board considered the "benefit of the doubt" doctrine, however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of this matter on that basis. 38 C.F.R. § 3.102 (2007). The Board concludes that the claimed disorders on appeal were not incurred in or aggravated by service; nor in the case of arthritis, become manifested to a compensable degree within one year of separation from active duty; nor were either proximately due to any service-connected disability to include by way of aggravation. As the preponderance of the evidence is against the claims for service connection for the disorders of the left shoulder and right leg, the benefit-of-the-doubt rule does not apply, and both of the claims must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). While the veteran has testified as to his belief that his claimed disorders on appeal are related to service or to service-connected disability, he is a layman, and as such has no competence to give a medical opinion on diagnosis or etiology of a condition. Espiritu v. Derwinski, 2 Vet. App. 492 (1992). ORDER Entitlement to service connection for a left shoulder disorder is denied. Entitlement to service connection for a right leg disorder is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs