Citation Nr: 0814026 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 06-11 606 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to service connection for a right shoulder disorder, claimed as degenerative joint disease. ATTORNEY FOR THE BOARD K. Gielow, Associate Counsel INTRODUCTION The veteran served on active duty from October 1961 to August 1962 and from January 1981 to September 1997. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. FINDINGS OF FACT 1. The evidence does not reflect an in-service injury or disease of the right shoulder; a chronic right shoulder disorder was not manifest during service. 2. A degenerative joint disease of the right shoulder did not manifest to a degree of 10 percent within one year of service separation. 3. Symptoms of a right shoulder disorder were not shown until October 1998. 4. The veteran's current right shoulder degenerative joint disease is unrelated to service. CONCLUSION OF LAW A right shoulder disorder, claimed as degenerative joint disease, was not incurred in or aggravated by service, nor may it be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSION The veteran is claiming entitlement to service connection for degenerative joint disease of the right shoulder. He contends that he was diagnosed with arthritis in service and that his right shoulder arthritis is related to service. Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131. "Generally, to prove service connection, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury." Pond v. West, 12 Vet. App. 341, 346 (1999). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as arthritis, to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2007). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2007). Further, service connection may also 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2007). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In the present case, there is no dispute that degenerative joint disease of the right shoulder is currently shown by X- ray findings. However, the veteran contends that the degenerative joint disease in his right shoulder was first diagnosed and treated during service and should be service connected. As will be discussed below, the evidence of record outweighs his current assertions of in-service incurrence. After review of all the evidence of record, the Board finds the weight of the evidence demonstrates that there no in- service injury or disease of the right shoulder. The veteran maintains that the right shoulder disorder was diagnosed and treated in service; however, the service medical records and his own contemporaneous statements do not support this assertion. Contrary to the lay statements recently made by the veteran, the service medical records for both his periods of active duty do not show complaints, findings, a diagnosis, or treatment for a right shoulder disorder. He underwent a separation examination in July 1997 before his retirement from service. Of particular importance, the separation examination did not reveal a right shoulder disorder and found that the veteran had "normal" strength and range of motion in the upper extremities. In addition to the absence of supporting information from the service medical records, previous statements made by the veteran prior to separation from service do not indicate the occurrence of any right shoulder injury or disease in service. Specifically, when directed to report existing and prior conditions at the July 1997 separation examination, the veteran reported that he did not then or ever have a painful or "trick" shoulder, even though several other medical conditions were specifically reported by the veteran. Although the veteran now, many years after service and pursuant to his service connection claim, states that he obtained a diagnosis and received treatment for a degenerative joint disease of the right shoulder in service, the contemporaneous information provided by the veteran at the time of the July 1997 service separation examination outweighs his current recollection of an in-service injury or disease. The United States Court of Appeals for the Federal Circuit has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). While not questioning the sincerity of his contentions, the Board finds that his contemporaneous history close in time to the separation from service to be of more probative value than his current recollections of in-service events many years after service. In conclusion, the Board finds that the probative value of the service records, including the absence of treatment and the veteran's contemporaneous statements, outweigh his current recollection of an in-service injury or disease of the right shoulder. The Board further finds that the degenerative joint disease of the right shoulder did not manifest to a degree of 10 percent within one year of service separation. Although arthritis is recognized as a chronic disease that is subject to presumptive service connection analysis pursuant to 38 C.F.R. § 3.309(a), the records do not indicate the manifestation of the arthritis in the right shoulder within the statutorily defined one-year period following service separation. The veteran's separation date from service is September 30, 1997. Accordingly, the presumption of service-connection will apply if the veteran's chronic degenerative joint disease (arthritis) manifested to a degree of at least 10 percent on or before September 30, 1998. However, the evidence of record indicates that he first sought medical treatment for right shoulder pain in October 1998, at which time he was diagnosed with osteoarthritis of the right acromioclavicular and glenohumeral joint. Specifically, in a VA treatment record, the veteran reported a 10-day history of right shoulder pain. This evidence suggests that right shoulder symptomatology manifested in October 1998, which is after the one-year presumption period. Therefore, the presumption of service incurrence for arthritis that manifests to a degree of 10 percent within one year of service separation does not apply. 38 C.F.R. §§ 3.307, 3.309. Next, the chronicity provision of 38 C.F.R. § 3.303(b) is applicable where evidence shows that a veteran had a chronic condition in service and still has such a condition. In the present instance, there was no treatment or diagnosis of a chronic right shoulder disorder in service. Further, symptoms associated with a right shoulder disorder were not continuous after service and were not manifest until October 1998. As previously stated, there is no evidence to support the finding that a chronic disorder was shown during service. Similarly, there is no evidence to support the finding that similar symptoms continued after the veteran's separation from service in September 1997. Significantly, the record indicates that the veteran did not experience or obtain treatment for pain and other arthritic symptoms in his right shoulder until October 1998, more than a year from service separation. Thus, the requirements chronicity and continuity of similar symptoms after service for a chronic disease cannot be established to support a statutory finding of service connection pursuant to 38 U.S.C.A. § 30.303(b). In addition to the documented post service treatment records, the evidence includes statements from the veteran asserting continuity of symptoms. The Board acknowledges that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board, however, finds that the veteran's reported history of continued right shoulder problems since active service is inconsistent with the other evidence of record. Indeed, while he stated that his disorder began in service, the separation examination was absent of any complaints. Moreover, the post-service evidence does not reflect treatment related to the right shoulder for more than one year following active service. Therefore, the Board finds that the contentions of a right shoulder disorder since service of less probative value on the issue of continuity. Next, the Board finds that the veteran's currently-diagnosed right shoulder disorder is unrelated to service. Specifically, there are no medical opinions or competent evidence causally relating his current right shoulder disorder to active service. While a VA physician's report from October 2005 merely restates the veteran's belief that he was diagnosed and treated for a right shoulder degenerative joint disease in service, his service records, including the July 1997 separation examination, indicate otherwise. In the 2005 statement, the VA physician provides no opinion of a causal connection; the physician merely conducts a review of post-service medical records from 1998 to confirm the presence of arthritis more than a year after the veteran's separation from service. The listing of such symptomatology as a part of the history or complaints section of the examination report does not equate to a medical nexus opinion of etiology. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) ("a bare transcription of a lay history is not transformed into 'competent medical evidence' merely because the transcriber happens to be a medical professional"). While an examiner can render a current diagnosis based upon his examination of the veteran, the U.S. Court of Appeals for Veterans Claims has held that without a through review of the record, an opinion regarding the etiology of the underlying condition can be no better than the facts alleged by the veteran. Swann v. Brown, 5 Vet. App. 229, 233 (1993). Moreover, there is no in-service injury or disease to which a medical opinion could relate the current diagnosis of arthritis of the right shoulder. For these reasons, the evidence does not related his right shoulder disorder to service. The Board has also considered the veteran's statements asserting a relationship between his currently-diagnosed right shoulder disorder and active duty service. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the later is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. Layno v. Brown, 6 Vet. App. at 470. As a lay person, however, he is not competent to offer opinions on medical diagnosis or causation, and the Board may not accept unsupported lay speculation with regard to medical issues. See Moray v. Brown, 5 Vet. App. 211 (1993); Espiritu v. Derwinski, 2 Vet. App. 482 (1992). In this case, the Board attaches greater probative weight to the clinical findings of skilled, unbiased professionals than to the veteran's statements. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (holding that interest in the outcome of a proceeding may affect the credibility of testimony). In summary, the evidence of record does not show the incurrence of a right shoulder disorder in service or for more than one year thereafter. Moreover, competent evidence does not reveal that the veteran's currently-diagnosed right shoulder degenerative joint disease is causally related to active service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim for service connection must be denied. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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). Proper notice from VA must inform the claimant of any information and medical or lay 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 in accordance with 38 C.F.R. § 3.159(b)(1). Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). Here, the VCAA duty to notify was satisfied by way of two letters sent to the veteran in December 2004 that fully addressed all four notice elements and were sent prior to the initial RO decision in this matter. The letters informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. He was also asked to submit evidence and/or information in his possession to the RO. There is no allegation from the veteran that he has any evidence in his possession that is needed for full and fair adjudication of this claim. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in December 2004, the RO provided the veteran with notice of what type of information and evidence was needed to establish service connection for the right shoulder arthritis. Additionally, in March of 2006, he received a letter regarding the evidence needed to evaluate his disability rating and effective date for his claim. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Because the service connection claim is being denied, and no effective date will be assigned, the Board finds that there can be no possibility of any prejudice to the appellant under the holding in Dingess, supra. Therefore, adequate notice was provided to the veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 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. § 5103A(d); 38 C.F.R. § 3.159(c)(4). With respect to the third factor above, the U.S. Court of Appeals for Veterans Claims 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, there is no competent evidence to show an in- service injury or disease of the right shoulder or that the right shoulder degenerative joint disease manifested within the one-year presumption period. Correspondingly, there is no in-service injury or disease for which the veteran's current right shoulder disorder could be causally related to by competent medical evidence for purposes of establishing service connection. Therefore, the Board further finds that a remand for a VA examination or opinion is not in order. The evidence supports only the first factor of 38 C.F.R. § 3.159(c)(4) (current disability), and there is no competent evidence to support an in-service injury or disease of the right shoulder or to establish that the veteran's right shoulder degenerative joint disease is related to active military service. With respect to this claim, the RO has obtained VA treatment records, and the veteran submitted lay statements and private treatment records regarding his right shoulder degenerative joint disease. The Board finds that all necessary development has been accomplished and, therefore, appellate review may proceed without prejudice to the veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board finds that the medical evidence of record is sufficient to make a decision on the claim and that a remand for a VA examination is not warranted. The veteran has not identified, and the record does not otherwise indicate, any additional existing evidence necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for a right shoulder disorder, claimed as degenerative joint disease, is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs