Citation Nr: 1034515 Decision Date: 09/14/10 Archive Date: 09/21/10 DOCKET NO. 08-17 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to service connection for residuals of a left shoulder injury with degenerative joint disease (claimed as left shoulder injury and traumatic arthritis). REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission ATTORNEY FOR THE BOARD S. Coyle, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1942 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision by the Jackson, Mississippi, Regional Office (RO) of the Department of Veterans Affairs (VA), which denied entitlement to service connection for a residuals of a left shoulder injury and traumatic arthritis. A timely appeal was noted with respect to that decision. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2). FINDING OF FACT A clear preponderance of the evidence is against a finding that a left shoulder disability had its onset, increased in severity, or is otherwise related to the Veteran's period of service, nor did degenerative joint disease manifest to a compensable degree within 1 year of the Veteran's discharge from active service. CONCLUSION OF LAW Residuals of a left shoulder injury with degenerative joint disease were not incurred or aggravated in service, nor may it be so presumed. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist In correspondence dated October 2007, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim for service connection; information and evidence that VA would seek to provide; information and evidence that the Veteran was expected to provide; and the manner in which initial disability ratings and effective dates are established. VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). Service treatment records have been associated with the claims file. All identified and available post-service treatment records have been secured. The Veteran has been medically evaluated in conjunction with his claim. A November 2008 computer-generated Social Security Administration (SSA) inquiry indicates that the Veteran is receiving payment from SSA. However, there is no entry under the "disability onset" date and the date of initial entitlement is January 1984, shortly after the Veteran reached the age of sixty-two. VA was therefore not required to request any records from SSA, as there was no indication that SSA possessed any records relevant to the current claim. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). The Board is satisfied that duties to notify and assist have been met. Legal Criteria In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. If a condition noted during service is not determined to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b). 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 C.F.R. § 3.303(d). If arthritis becomes manifest to a degree of 10 percent within one year from the date of termination of service, such disease shall 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. This presumption does not apply in the present case, as arthritis did not manifest until many years after discharge, as discussed below. There must be medical evidence of a current disability, medical or lay evidence of in-service incurrence or aggravation of a disease or injury, and medical evidence linking the current disability to that in-service disease or injury. Pond v. West, 12 Vet. App. 341, 346 (1999); Hickson v. West, 12 Vet. App. 247, 253 (1999). Analysis The Veteran has been diagnosed with degenerative joint disease of the left shoulder with full thickness rotator cuff tear, which he attributes to a fall from a horse while stationed in Arizona in 1943. The Veteran's service treatment records have been reviewed. There was no mention of a shoulder injury or shoulder pain on service entry in August 1942. Clinical notes dated September 19, 1943, indicate that the Veteran was "riding a horse at Nogales, Ariz., [and] the horse fell, pinning his left leg, resulting in a laceration below the left knee and a very painful generalized swelling of the left ankle." Treatment records from the Veteran's subsequent hospitalization show that he was treated for a laceration of the left leg and a "severe" sprain of the left ankle as due to his fall from a horse, and that he was discharged to duty on October 21, 1943. None of the treatment records from the Veteran's course of hospitalization document a shoulder injury or complaints of shoulder pain. The Veteran was discharged from service in December 1945. His discharge examination is negative for musculoskeletal defects, although the Veteran did indicate that his left knee "hurt a little" as a result of his 1943 injury. He did not report a shoulder injury or chronic shoulder pain. Post-service medical evidence includes clinical notes dated June 1980 and 1994 which show that the Veteran's extremities were "within normal limits." "Minimal degenerative changes of the left shoulder" were found on X-rays in November 1996, with concurrent reports of paresthesias of the left lower extremity. There were no further complaints of shoulder pain until March 2003, when the Veteran reported a "one-week history of pain in the left trapezius muscle," which he attributed to an in-service fall from a horse. In February 2006, the Veteran presented with "3 weeks of shoulder pain." July 2007 X-rays of the Veteran's shoulder revealed "severe" arthritis with a "slight deformity ... suggested to be an old fracture site" and rotator cuff disease. No acute fracture or definite soft tissue abnormalities were observed. A September 2007 VA clinical evaluation diagnosed a chronic rotator cuff tear, characterized as "irreparable." An October 2007 MRI report noted a "long ... history of pain" and confirmed the diagnosis of full thickness rotator cuff tear. The Veteran was referred to physical therapy. The Veteran received a VA joints examination in December 2008. The claims folder was reviewed, and the clinical notes concerning the Veteran's in-service fall from a horse were discussed. The examiner also noted the Veteran's lay statements concerning a shoulder injury a result of the fall. The Veteran advised the examiner that his shoulder had "bothered him off and on over the years" but that it had not interfered with his employment. He reported that he had sought medical attention for his left shoulder, but did not receive any X-rays. The diagnosis was degenerative joint disease of the left shoulder with full thickness rotator cuff tear. The examiner found that "[w]hile there is documentation of his leg injuries, I can find no documentation of any shoulder injury. Therefore, based upon the available evidence of record, I can only opine that it is less likely as not that his degenerative arthritis with ... rotator cuff tear ... is the direct and proximate result of any incident or any occurrence in the military. In the absence of documentation, to say otherwise would be resorting to mere speculation." The Veteran also provided written authorization to obtain records from St. Mary's Hospital, now known as Holy Cross Hospital, in Nogales, Arizona, where he claimed to have been treated immediately following his fall. In December 2009, that facility responded that it had no records of the Veteran's treatment there. On review, the Board finds that a preponderance of the evidence is against a finding that a left shoulder disability, to include rotator cuff tear and degenerative joint disease, is the result of his active service. The Veteran's service treatment records are negative for complaints of, or treatment for, a left shoulder disorder or left shoulder pain. His December 1945 separation examination was negative for musculoskeletal abnormalities, and a chronic left shoulder disability was not among the history given by the Veteran during the examination. There is no evidence of clinical treatment for a left shoulder disorder until November 1996, over 50 years after the Veteran's discharge from active service. The Veteran did not refer to a possible link to his in-service fall until March 2003. On VA examination in December 2008, the examiner noted the Veteran's report of an in-service shoulder injury and his claim that the disorder grew progressively worse. After considering all of the medical and lay evidence of record, the examiner found that the Veteran's current left shoulder disorder was less likely than not related to any incident in service because of a lack of documentation of such an injury in the medical records. The VA examiner is a medical professional and competent to render such an opinion, which is reasonably based on all of the medical and lay evidence of record. The Veteran claims that his left shoulder disorder had its onset during service and that he has experienced a continuity of symptomatology since service. Thus, in adjudicating this claim, the Board must also assess the competence and credibility of the lay evidence presented by the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). In Barr v. Nicholson, 21 Vet. App. 303 (2007), the Court, citing Layno v. Brown, 6 Vet. App. 465, 467-69 (1994), emphasized that lay testimony is competent if it is limited to matters that the witness has actually observed and is within the realm of the witnesses personal knowledge; see also 38 C.F.R. § 3.159(a)(2) (noting competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact- finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). The Veteran is competent to attest to his observations of left shoulder pain. Layno; 38 C.F.R. § 3.159(a)(2). However, he is not competent to diagnose the cause of the pain, or render an opinion as to the cause or etiology of the pain, because he does not have the requisite medical expertise. See, e.g., Routen v. Brown, 10 Vet. App. 183, 186 (1997); Espiritu v. Derwinski, 2 Vet. App. 492 (1992). On review, the Board finds that the Veteran's allegations of in- service incurrence and a continuity of symptomatology from service are not consistent with the remaining evidence of record. The Veteran's course of treatment following his September 1943 fall from a horse was reported by medical personnel. There is no evidence of a left shoulder injury or complaints of left shoulder pain during the Veteran's month-long hospitalization, although there are many references to left ankle and left leg/knee pain. There are no subsequent references to chronic shoulder pain, and a musculoskeletal examination conducted upon discharge showed no abnormalities. Significantly, the Veteran did report that his left knee "hurt a little bit" as a result of his 1943 fall, but did not report any shoulder injury or shoulder pain. There is no evidence of post-service clinical treatment for such symptoms until November 1996, over 50 years after his discharge, and the Veteran did not begin relating his shoulder pain to his in-service fall until March 2003. The Board does not find it likely that the alleged left shoulder injury in service resulted in chronic pathology, but went untreated during the Veteran's lengthy in-service hospitalization, unnoticed and unreported on the separation examination, with no recorded treatment for over 50 years, and was not mentioned in May 1998, April 1999, May 2001, January 2002, and September 2003 when the Veteran was aware of the compensation program and was actively seeking benefits for other disabilities. After weighing the lay and medical evidence, the Board finds that the lay evidence as to in-service incurrence and continuity of symptomatology is less convincing than the objective medical evidence of record and is therefore of limited probative value here. The Board is charged with weighing the positive and negative evidence, resolving doubt in the Veteran's favor when the evidence is in equipoise. Considering the overall evidence, including the service treatment records, post-service treatment records, medical opinions and lay evidence, the Board finds that the negative evidence is more persuasive and of greater probative value. In conclusion, a preponderance of the evidence is against a finding that the Veteran has a left shoulder disorder, to include degenerative joint disease, that is causally related to active service. Thus, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Entitlement to service connection for residuals of a left shoulder injury with degenerative joint disease (claimed as left shoulder injury and traumatic arthritis) is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs