Citation Nr: 1010976 Decision Date: 03/23/10 Archive Date: 03/31/10 DOCKET NO. 07-26 987 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Henriquez, Counsel INTRODUCTION The Veteran had active duty from July 1945 to June 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2004 and July 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In September 2009, the Board reopened the Veteran's claim of entitlement to service connection for cervical spondylosis with bilateral shoulder impingement and remanded the issue for further development. In a November 2009 Decision Review Officer Decision, service connection was granted for osteoarthritis of the cervical spine and for osteoarthritis of the right shoulder. As a result, those issues have been resolved and are not before the Board. See Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997). In a November 2009 supplemental statement of the case, the RO continued to deny service connection for a left shoulder disability. Thus, the issue of entitlement to service connection for a left shoulder disability remains on appeal and is addressed by the Board in this decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran does not have a left shoulder disability that is related to active service. CONCLUSION OF LAW A left shoulder disability was not incurred or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in October 2004 and March 2005 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain. The RO did not provide the Veteran notice of how disability ratings and effective dates are determined, but that omission was not prejudicial because the preponderance of the evidence is against the claim. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim, and as warranted by law, affording a VA examination. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Factual Background and Legal Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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). "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). Where the determinative issue involves a medical diagnosis, competent medical evidence is required. This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). The Veteran's claims folder reflects several written statements attesting to a cervical spine injury that was incurred during his active duty service. Specifically, the Veteran reported that in 1946 while on maneuvers in Italy, he was hit in the back by an Army truck and was thrown into a ditch. He reported that the accident caused his "neck to dislocate and lay on his left shoulder, which wouldn't straighten up." The available service treatment records do not show any findings or treatment pertaining to the left shoulder. At the Veteran's May 1947 separation examination no pertinent abnormality was found. In an August 1997 letter, T. B. Cowan, M.D., reported that an x-ray of the left shoulder was within normal limits. He opined that the Veteran appeared to have rotator cuff tendonitis of the infraspinatous tendon. In a November 1997 VA outpatient treatment report, the diagnoses included bilateral shoulder impingement. As noted in the introduction, in September 2009, the Board reopened the Veteran's claim for entitlement to service connection for cervical spondylosis with bilateral shoulder impingement, and remanded the issue for further evidentiary development which included an evaluation by a VA examiner. The Veteran underwent a VA examination in November 2009. He reported that while serving in Italy, he was hit by a truck and injured his neck and right shoulder. He denied any left shoulder condition starting during active duty service. He also denied that the left shoulder was injured at the time of the truck injury. There was no abnormality of the left shoulder on physical examination. The assessment was a normal left shoulder. The Board finds that service connection for a left shoulder disability is not warranted. The VA examination in November 2009 found no left shoulder disability. Physical examination of the left shoulder was completely normal. Indeed, at the examination the Veteran specifically denied sustaining a left shoulder injury during service, and he denied experiencing any left shoulder problems during service. Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. The threshold requirement for the granting of service connection is evidence of a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board acknowledges that Dr. Cowan speculated in August 1997 that the Veteran appeared to have left shoulder cuff tendonitis, and that a November 1997 VA outpatient treatment report reflects a diagnosis of bilateral shoulder impingement. However, from the time that the Veteran's application to reopen his claim of entitlement to service connection was received in August 2004, there is no medical record documenting treatment for or a diagnosis of a left shoulder disability. See McLain v. Nicholson, 21 Vet. App. 319 (2007) (holding that the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claim's adjudication). Accordingly, because the medical evidence of record does not show that a current left shoulder disorder exists, and because there is no competent evidence linking a current left shoulder disorder to service, entitlement to service connection for a left shoulder disability is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to service connection for a left shoulder disability is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs