Citation Nr: 0813682 Decision Date: 04/25/08 Archive Date: 05/01/08 DOCKET NO. 05-06 504 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a left shoulder disorder. 2. Entitlement to service connection for post-traumatic stress disorder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD John Francis, Associate Counsel INTRODUCTION The veteran served on active duty from June 1970 to March 1972. This appeal comes before the Board of Veterans' Appeals (Board) from a May 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for a left shoulder disorder and from an October 2004 rating decision that denied service connection for post-traumatic stress disorder (PTSD). The issue of service connection for PTSD is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, D.C. The veteran testified before the Board sitting at the RO in October 2007. A transcript of the hearing is associated with the claims file. FINDING OF FACT The veteran's current chronic left shoulder disability first manifested not earlier than 2001, many years after service, and is not related to a fall from a vehicle or any other aspect of service. CONCLUSION OF LAW The criteria for service connection for a left shoulder disorder have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her 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 must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, correspondence in March 2004 fully addressed all four notice elements and was sent prior to the initial decision. The letter informed the appellant of what evidence was required to substantiate the claim and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession. VA must also review the information and the evidence presented with the claim and provide the claimant with notice of what information and evidence not previously provided, if any, is necessary to substantiate each of the five elements of the claim, including notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Although the notice provided in March 2004 did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, a satisfactory notice was provided in March 2006 with a subsequent adjudication in a supplemental statement of the case in December 2006 and a January 2007 acknowledgement by the veteran that he had no further evidence to submit regarding the claim. Furthermore, such error was harmless because service connection is being denied, and hence no rating or effective date will be assigned for a left shoulder disorder. In addition, VA has obtained all relevant, identified, and available evidence and has notified the appellant of any evidence that could not be obtained. VA has not obtained a medical examination for reasons discussed below. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. The veteran served as an Army rifleman and tire repair technician including service in the Republic of Vietnam. He contends that he injured his left shoulder when jumping from a vehicle during his deployment to Southeast Asia. Generally, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. § 1131, 38 C.F.R. § 3.303. In order to establish service connection for a claimed disorder, there must be (1) medical evidence of 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); see also Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Brammer v. Derwinski, 3 Vet. App. 223 (1992). Such determination is based on an analysis of all the evidence of record and evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1, 8 (1999). In a February 2004 claim, the veteran stated that he received medical care for an injury to his left shoulder in 1972 a post medical facility in Seattle, Washington. In an October 2007 Board hearing, the veteran stated that he had injured his right ankle prior to deployment. He further stated that after arriving in Vietnam he reinjured his right ankle when jumping from a vehicle and landed on his left shoulder. He stated that his only treatment for his shoulder was medication for pain at that time and again at the time of his discharge physical examination. Service medical records are silent for any symptoms, injuries, examinations, or treatment of the left shoulder in service. Records showed that the veteran was treated for a right ankle sprain at a training facility from March to May 1971. In August 1971, a medical officer at a field detachment in Vietnam noted the veteran's reports of another right ankle sprain. However, there were no comments about the circumstances of the second ankle injury or any report of a left shoulder injury. The medical officer prescribed 48 hours rest in quarters. Two days later, the veteran was evaluated by an orthopedic physician at an evacuation hospital. The physician noted the veteran's reports of persistent ankle pain but no left shoulder symptoms. The physician ordered a limited duty profile for two weeks but did not note any prescription medication for pain. In a March 1972 discharge physical examination, a physician found no musculoskeletal abnormalities and noted that the right ankle sprain had resolved. The veteran signed a portion of the report indicating that his health was good with no abnormal symptoms. There were no entries for any clinical care including medication for pain. In an October 2007 Board hearing, the veteran stated that he sought medical care after discharge in from a VA facility in Fayetteville, North Carolina. Records of medical care from that facility showed care for another right ankle sprain from December 1977 to November 1979. No records of care from 1972 were recovered and no history or current symptoms of a left shoulder injury were noted in the later records. The veteran also stated that he sought treatment from a private physician in 1972 who told him that his left shoulder was probably badly bruised and advised that he use pain medication. The veteran acknowledged that he never requested records from this physician despite notices that VA would seek the records if so authorized. The veteran stated that he worked in several industrial jobs until 2000 when the family physician recommended a shoulder examination by a specialist. In October 2001, a private orthopedic physician noted that the veteran complained of left shoulder pain for the previous two to three months. The physician also noted that the veteran reported no specific trauma or instigating event and that he previously had been treated only with a topical sports medication. X-rays showed a small spur off the coracoid process and some thickening of the distal clavicle. The physician diagnosed subacromial bursitis and possible partial rotator cuff tear. The veteran received a steroid injection. After review of a magnetic resonance image, a surgeon performed arthroscopic surgery and debridement with bursectomy. Records showed follow-up physical therapy and additional medication through February 2002. In September 2004, a VA mental health clinic examiner noted that the veteran was experiencing multiple joint arthritis, especially at the left shoulder. Subsequent VA treatment records for other disorders in 2005 and 2006 also noted on- going medical treatment for arthritis. None of the VA records mentioned any injuries to the left shoulder in or after service. The Board concludes that service connection for a left shoulder disorder is not warranted because there is no competent medical evidence that a fall from a vehicle in service resulted in a chronic left shoulder disability which first manifested not earlier than 2001, many years after service. The Board acknowledges the veteran's statement that he fell on his shoulder, but service medical records are silent for treatment for any acute injury or diagnosis of a chronic disorder. The veteran reported that his family physician in 1972 told him that his discomfort was a bad bruise, and the veteran did not authorize the recovery of any specific records from this physician. Even if available, the veteran's reports of his physician's statement demonstrate that records would not likely show any clinical data to support a diagnosis of a chronic disorder or an opinion relating a disorder to any aspect of service. Furthermore, the veteran worked successfully in a factory for thirty years after service. VA treatment records in 1977 through 1979 noted right ankle symptoms but no complaints of left shoulder discomfort. Finally, the orthopedic physician in 2001 noted that the veteran's left shoulder symptoms had a recent onset and that the veteran did not report the occurrence of any earlier trauma. The Board considered whether a VA examination was required in this case. The duty to assist is triggered when it is necessary to obtain an examination to make a decision in the case. Factors to consider in determining whether an examination is necessary include whether there is evidence of a current disability, and whether there is evidence that the disability may be associated with the appellant's military service but there is not sufficient medical evidence to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2007); see also McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Here, the veteran is competent to report that he fell on his shoulder. However, there is no competent medical evidence that the fall caused an acute injury or chronic left shoulder disability in service or for many years after service. Therefore, a medical examination is not necessary to decide the claim. Although the veteran may have a sincere belief that a fall from a vehicle caused his current chronic disorder, as a layperson, the veteran does not possess the necessary knowledge of medical principles, and his assertions, standing alone, are not probative as to the etiology of his current extremity symptoms. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The weight of the credible evidence demonstrates that the veteran's current left shoulder spur, bursitis, cuff tear, and arthritis first manifested many years after service and is not related to any aspect of service. As the preponderance of the evidence is against this claim, the "benefit of the doubt" rule is not for application, and the Board must deny the claim. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a left shoulder disorder is denied. REMAND In the opinion of the Board, additional development is necessary. Service connection for PTSD requires medical evidence establishing a diagnosis of the condition in accordance with 38 C.F.R. § 4.125(a) (i.e., the diagnosis must comply with the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders, 1994 (DSM-IV)); credible supporting evidence that the claimed in-service stressor occurred; and a link, established by medical evidence, between current symptomatology and the claimed in-service stressor. See 38 C.F.R. §§ 3.304(f), 4.125; see also Cohen v. Brown, 10 Vet. App. 128, 140 (1997). The occurrence of an event alleged as the "stressor" upon which a PTSD diagnosis is based (as opposed to the sufficiency of the alleged event to cause PTSD) is an adjudicative determination, not a medical determination. Zarycki v. Brown, 6 Vet. App. 91, 97-98 (1993). Service personnel records showed that the veteran was assigned to Company E (Rifle Security), 50th Infantry, providing facility security for U.S. Army Support Command, Da Nang, Republic of Vietnam from July 1971 to March 1972. He received no combat awards or the Combat Infantryman Badge. In an August 2004 statement and in an August 2004 VA examination, the veteran stated that while attached to a military police unit in Vietnam, he participated in combat operations in the field, witnessed the death of several friends, and sighted many refugees who had been displaced and crippled by the war. He described a specific event that occurred when he was on duty as a guard in a facility perimeter watch tower. He stated that he was asleep on post and did not see the enemy intruding into the facility until another soldier awakened him during the fighting. The solder was killed later that night. He did not mention the date or place, the soldier's name, or whether he witnessed the death. A VA psychologist diagnosed PTSD. In an October 2004 statement, the veteran stated that the incident occurred at the China Beach facility near Da Nang. In an undated response to a VA questionnaire, the veteran also stated that he witnessed the electrocution of an unnamed soldier who placed his rifle on a power line. Subsequent outpatient treatment reports and periodic examinations refer to nightmares and flashbacks of the war in general but do not refer to these or any other specific traumatic events. In an April 2005 RO hearing, the veteran reported that as a military policeman he had been threatened with a firearm by soldiers who he had reported in possession of illegal drugs. He also stated that these soldiers threw another individual into electrical equipment that caused his electrocution and that he had witnessed a soldier being abducted by the enemy for running into a cow with a vehicle. In a February 2007 statement, the veteran stated that the roving guard who saved his life in the base intrusion firefight was named "George." He also stated that he witnessed a soldier named "Willie" being killed on guard duty. The date, place, and circumstances were not provided. In his October 2007 hearing, the veteran did not mention any of the events noted above. Rather, the veteran stated that on August 16, 1971, he had been assigned to a truck convoy which was attacked and that his friend "George" was shot and killed in the attack. Although he did not mention the soldier's full name during the hearing, he provided a full name, "George Anthione Chapman," in a written statement the same day. Public records of the Vietnam Veteran's Memorial show that SP4 George Anthony Chapman, Serial Number 399584755, a light vehicle mechanic, was killed by a hostile explosive device on August 26, 1971 in Quang Nam province located adjacent to Da Nang City, Republic of Vietnam. Although the veteran was assigned to a base security force in the Da Nang area, it is not clear whether his duties included guarding truck convoys or whether Specialist Chapman was in his unit. Further development of the military records is necessary to determine whether the veteran was in a combat action with the enemy or to verify the occurrence of the traumatic event. Furthermore, the event involving the truck convoy described at the hearing had not been previously reported to any of the veteran's mental health providers who formed their diagnoses based on another unverified event. Therefore, an additional psychiatric examination is necessary to determine whether if the veteran's current PTSD is related to a verifiable traumatic event. Accordingly, the case is REMANDED for the following action: 1. Request from the National Personnel Records Center the service personnel records and any U.S. Army casualty reports for SP4 George Anthony Chapman, Serial Number 399584755, MOS 63B2P, who was killed by a hostile explosive device on August 16, 1971 in Quang Nam province, Republic of Vietnam. Associate any records obtained with the claims file. 2. Request from the Joint Service Record Research Center all unit operational reports or lessons learned reports for Company E (Rifle Security), 50th Infantry, and for U.S. Army Support Command, Da Nang, for the period August 25, 1971 to August 28, 1971. 3. Schedule the veteran for a psychiatric examination by an appropriately qualified VA physician. Request that the physician review the claims file and note review of the claims file in the examination report. Request that the physician provide an evaluation of the veteran's mental health status in accordance with the criteria of DSM-IV and provide an opinion whether any disability found is at least as likely as not (50 percent or greater possibility) related to any specific traumatic events in service or any other aspect of service. 4. Then, readjudicate the claim for service connection for PTSD. If the decision remains adverse to the veteran, provide the veteran and his representative with a supplemental statement of the case and an opportunity to respond. Thereafter, return the case to the Board as appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ D. C. SPICKLER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs