Citation Nr: 0815167 Decision Date: 05/07/08 Archive Date: 05/14/08 DOCKET NO. 95-30 003 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a cardiac disorder. 2. Entitlement to service connection for a bilateral knee disorder, including arthritis. 3. Entitlement to service connection for a right and left shoulder disorder. 4. Entitlement to service connection for an upper back disorder. ATTORNEY FOR THE BOARD J. Meawad, Associate Counsel INTRODUCTION The veteran served on active duty from December 1979 to September 1992, April 1997 to January 1998, May 2003 to June 2004, and from the record it appears that he was reactivated in March 2005 and may currently be on active duty. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia, that denied the above claims. In October 1997 and May 1998, the Board remanded the above claims for additional development and due process concerns. In a February 2005 decision, the RO again denied service connection for the issues on appeal. In February 2006, the Board remanded the issues on appeal for additional development and due process concerns. The case has been returned for further appellate review. The claims of service connection for a left shoulder disorder and an upper back disorder are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. FINDING OF FACT There is no competent evidence of record showing that the veteran currently suffers from a cardiac disorder, a bilateral knee disorder, and a right shoulder disorder. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a cardiac disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2007). 2. The criteria for entitlement to service connection for a bilateral knee disorder, including arthritis, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2007). 3. The criteria for entitlement to service connection for a right shoulder disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2007). REASONS AND BASES FOR FINDING AND CONCLUSIONS Service connection may be granted for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of a pre-existing injury or disease in the line of duty. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306. In order to prevail on the issue of service connection on the merits, there must be medical evidence of a (1) 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. Hickson v. West, 12 Vet. App. 247, 253 (1999). In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). 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. In this case, the record does not contain a current diagnosis of a cardiac disorder, a bilateral knee disorder, including arthritis, and a right shoulder disorder. In fact, post- service medical evidence is entirely negative for any competent evidence of the clinical presence of these conditions. Service medical records show that the veteran complained of having chest pain on several occasions. In May 1980, his chest pain was attributed to nervousness or hyperventilation syndrome and other pathology was ruled out. In March 1981, the veteran was diagnosed as having frequent premature ventricular depolarizations. Post-service records reveal no current diagnosis of a cardiac disorder. In a December 1992 VA examination, the veteran was diagnosed as having a history of cardiac palpitations diagnosed as secondary to caffeine, which was noted as not found during that examination. In November 2001, the veteran was afforded another VA examination. A chest x-ray showed no evidence of an acute cardiopulmonary process. Following a physical examination, the examiner commented that the veteran's premature ventricular contractions were benign in origin and he did not believe the veteran's symptoms were of clinical significance. The veteran was found to have no other significant cardiac problems based on his complaints or objective findings. The veteran submitted service medical records which showed treatment in August 2005 for complaints of regular heart rhythm with premature beats. There was no evidence of a diagnosis of a cardiac disorder with those records. In the absence of any competent evidence of a cardiac disorder, the Board must conclude the veteran does not currently suffer from that disability. Regarding the claims for service connection for a bilateral knee disorder and right shoulder disorder, there is no competent evidence of record that the veteran currently suffers from any knee disorder, including arthritis, or a right shoulder disorder. Service medical records show that the veteran was treated in June 1982 for overstress syndrome of the lateral right knee. Service medical records were silent for any complaints or findings of a right shoulder disorder. Post-service treatment records, however, are negative for any diagnosis of a bilateral knee disorder or a right shoulder disorder. In fact, the December 1992 examination report stated that x-rays showed no significant pathological findings noted for the knees and the November 2001 VA examination report stated that there was no pathology to render a diagnosis for the claimed right shoulder disability following x-rays and a physical examination. The only evidence of the existence of this disability is the veteran's own statements. In the absence of any competent evidence of a bilateral knee disorder, including arthritis, and a right shoulder disorder, the Board must conclude the veteran does not currently suffer from these disabilities. 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. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). VA must request that the claimant provide any evidence in the claimant's possession that pertains to a claim. 38 C.F.R. § 3.159. The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the U.S. Court of Appeals for Veterans Claims (Court) held, in part, that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, the unfavorable AOJ decision that is the basis of this appeal was already decided and appealed prior to the enactment of the current section 5103(a) requirements in 2000. The Court acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not mandated at the time of the initial AOJ decision, the AOJ did not err in not providing such notice. Rather, the appellant has the right to a content complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. The RO provided the appellant with notice in October 2001, February 2005, February 2006, and July 2006. Following these notice letters, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claims were subsequently readjudicated in February 2005 and January 2008 supplemental statements of the case, following the provision of complete notice. The notification substantially complied with the specificity requirements of Dingess v. Nicholson, 19 Vet. App. 473 (2006) identifying the five elements of a service connection claim; Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and Pelegrini v. Principi, 18 Vet. App. 112 (2004), requesting the claimant to provide evidence in his or her possession that pertains to the claims. VA has obtained service medical records, assisted the veteran in obtaining evidence, afforded the veteran physical examinations, and obtained medical opinions as to the etiology and severity of disabilities. All known and available records relevant to the issues on appeal have been obtained and associated with the veteran's claims file; and the veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the veteran is not prejudiced by a decision on the claim at this time. ORDER Service connection for a cardiac disorder is denied. Service connection for a bilateral knee disorder, including arthritis, is denied. Service connection for a right shoulder disorder is denied. REMAND Service medical records show that the veteran was treated for upper back pain on several occasions during service and was diagnosed as having overuse syndrome of the left shoulder girdle muscles in June 1992. Post-service treatment records show that during the November 2001 VA examination, x-rays showed a tiny radiodensity measuring approximately 3 mm projected immediately subjacent to the mid to distal shaft of the clavicle, overlying the infraclavicular soft tissues and may reflect overlying or soft tissue artifact versus incidental soft tissue calcification. In addition, private x-rays dated March 2001 showed moderate intervertebral disc space narrowing at T5-T6. In addition, an April 2001 private sonogram of the upper trunk region revealed facet inflammatory changes at T3-4. The Board finds that the veteran should be afforded a VA examination to obtain a medical opinion as to whether his upper back disorder and left shoulder disorder are related to his inservice complaints of upper back pain and diagnosis of overuse syndrome of the left shoulder girdle muscles. Such an opinion is necessary for a determination on the merits of the claim. See 38 C.F.R. § 3.159 (c)(4); 38 U.S.C.A. § 5103A(d). In addition, the veteran's most current VA treatment records and service medical records from his last period of service should also be obtained. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file the veteran's complete VA treatment records and service medical records from his last period of service beginning March 2005. 2. Schedule the veteran for an appropriate VA examination to determine the current nature and likely etiology of the claimed upper back disorder and left shoulder disorder. The claims file must be made available to the examiner for review prior to the examination. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. Based on the examination and review of the record, the examiner is requested to provide an opinion as whether it is at least as likely as not (i.e., whether there is at least a 50 percent probability) that any current upper back disorder and left shoulder disorder had their onset during active service or are related to any in-service disease or injury. A detailed rationale for any opinion expressed should be provided. 3. Then, readjudicate the claims on appeal, with application of all appropriate laws and regulations and consideration of any additional information obtained. If the decision with respect to the claims remains adverse to the appellant, he and his representative should be furnished a supplemental statement of the case and afforded a reasonable period of time within which to respond thereto. 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). ____________________________________________ M. E. LARKIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs