Citation Nr: 1036496 Decision Date: 09/27/10 Archive Date: 09/30/10 DOCKET NO. 06-06 787 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD David S. Nelson, Counsel INTRODUCTION The Veteran had active service from October 1970 to February 1971. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a September 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada. In February 2009 the Board determined that new and material evidence had been received to reopen a claim of entitlement to service connection for a left shoulder disability and remanded the case for additional development. FINDING OF FACT A chronic left shoulder disability was not shown in service or within a year of discharge from service, and the competent medical evidence fails to establish a nexus or link between any left shoulder disability and the Veteran's active service. CONCLUSION OF LAW Left shoulder disability was not incurred in, or aggravated by, active service, nor may it be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies in the instant case. Duty to Notify 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 VCAA 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; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). By correspondence dated in April 2005 and March 2006 the Veteran was informed of the evidence and information necessary to substantiate the claim, the information required of the appellant to enable VA to obtain evidence in support of the claim, the assistance that VA would provide to obtain evidence and information in support of the claim, and the evidence that should be submitted if there was no desire for VA to obtain such evidence. In the March 2006 letter, the Veteran received notice regarding the assignment of a disability rating and/or effective date in the event of an award of VA benefits. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As VCAA notice was not completed prior to the initial AOJ adjudication of the claim, such notice was not compliant with Pelegrini. However, as the case was readjudicated thereafter, there is no prejudice to the Veteran in this regard. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Duty to Assist The Veteran's service treatment records are associated with the claims file, as are VA and private medical records. The Veteran's records from the Social Security Administration (SSA) are also associated with the claims file. In September 2009 the Veteran underwent a VA examination that addressed the medical matters presented by this appeal. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the September 2009 VA examiner's opinion concerning the Veteran's left shoulder disability is more than adequate. The September 2009 examiner elicited information concerning the Veteran's military service and considered the pertinent evidence of record, including specific references to the Veteran's medical records. Supporting rationale was provided for the opinion. Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board finds that there has been substantial compliance with its February 2009 remand instructions. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran has not referenced any other pertinent, obtainable evidence that remains outstanding. VA's duties to notify and assist are met, and the Board will address the merits of the claim. Analysis A veteran is entitled to service connection for a disability resulting from a disease or injury incurred or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection also is permissible for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Arthritis will be presumed to have been incurred or aggravated in service if manifested to a compensable degree within one year after service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This presumption is rebuttable by probative evidence to the contrary. If there is no evidence of a chronic condition during service, or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. 38 C.F.R. § 3.303(b). Evidence of a chronic condition must be medical, unless it relates to a condition to which lay observation is competent. Savage v. Gober, 10 Vet. App. 488, 495-498 (1997). In each case where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of such veteran's service as shown by such veteran's service record, the official history of each organization in which such veteran served, such veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a). The Veteran's July 10, 1970 service enlistment examination report indicates that the Veteran's upper extremities and musculoskeletal system were evaluated as normal. The Veteran indicated (Box 20 and the Physician's Summary portion) that he had shoulder pain and stiffness on the corresponding Medical History Report. An October 30, 1970 service treatment record reveals that the Veteran complained of arthritis in his shoulders; no diagnosis was made. The Veteran's January 1971 service discharge examination report indicates that the Veteran's upper extremities and musculoskeletal system were evaluated as normal. In a June 1991 private medical record the Veteran indicated that he had had a work-related injury in 1986 that resulted in neck pain. The examiner stated, in pertinent part, as follows: I forgot to add that the [Veteran] had a second work injury on 2/13/89, in which he states that he was electrocuted and fell about 10 feet. I think it was since that injury that he started complaining of numbness of the left side of the face and the left arm. The impression included no objective abnormality seen on physical examination. An October 1991 private medical record revealed an impression of chronic pain syndrome, probably myofascial involving the left pericervical muscles and also left sternocleidomastoid and left trapezius muscle. A November 1991 whole body bone scan revealed an impression of a normal bone scan. June 1995 and September 1995 VA records reveal that the Veteran complained of left shoulder pain. The records noted that the Veteran had fallen from a ladder in 1989 and developed episodes of left arm pain. An October 1997 VA medical record reveals that the Veteran complained of aching in his left shoulder. The Veteran had full range of motion of the left shoulder and a notation of chronic left shoulder joint pain was made. December 2004 X-rays revealed degenerative osteoarthritis of the left acromioclavicular joint. A December 2004 VA bone imaging report showed "mild nonspecific uptake in the ... bilateral shoulders, compatible with mild arthritic change." A March 2005 MRI of the Veteran's left shoulder contains an impression of an extensive complete left rotator cuff tear involving elements of the supraspinatus tendon and infraspinatus tendon. In the March 2005 physician's questionnaire, the physician indicated that he had treated the Veteran for his left shoulder disability for three to four months, and he diagnosed the Veteran with an extensive rotator cuff tear and degenerative joint disease of the acromioclavicular joint. The physician opined that it was at least as likely as not that the Veteran's current left shoulder disability was a result of his in-service left shoulder injury, as identified by his service treatment records. The March 2005 physician further stated that the Veteran complained of "arthritis" in 1970, and observed that it would be "reasonable to project that this diagnosis would increase in severity over time especially if [the Veteran] had further injury to the shoulder." A March 2005 VA record essentially indicated that the Veteran had had left shoulder pain since service, when he suffered an extension injury while "holding some heavy stuff out," after which he felt a tear and significant pain in his left shoulder. The March 2005 VA record also noted that the rotator cuff tear shown in the March 2005 MRI was "indicative of a chronic old tear at this time." At an April 2009 VA joints examination, the examiner noted that the Veteran had injured his left shoulder in boot camp in 1970. The examiner noted that no private medical records were reviewed. After providing diagnoses of degenerative osteoarthritis of the left acromioclavicular joint and extensive left rotator cuff tear, the examiner essentially opined that the Veteran's current left shoulder disability was related to his 1970 boot camp left shoulder injury. In September 2009 a VA orthopedist reviewed the Veteran's claims file and stated, in pertinent part, as follows: The original service medical record stated that the veteran complained of arthritis of both of his shoulders; however, 11/06/91 whole body bone scan reported a normal bone scan of the entire body. If the veteran had a preexisting shoulder arthritic condition the bone scan should have indicated changes consistent with a diagnosis of arthritis of a 20-year duration, which it did not. Medical records were void for objective evidence for arthritis involving the left shoulder until 12/14/04: X-rays at that time report degenerative arthritis of the left acromioclavicular joint. Based on review of the medical records up through 1989 and subsequent diagnostic studies, it appears to this examiner that the veteran sustained an acute but transient condition involving his left shoulder during active military service on 10/22/70. The examiner noted that there was just no "objective evidence of the left shoulder injury/condition prior to 1989 and noted that there was no "consistent medical evidence" establishing a connection between the Veteran's left shoulder arthritis and his "one-time complaint of shoulder pain" occurring during active military service in October 1970." The examiner stated that it was not likely that the Veteran's left shoulder condition was related to his military service. The evidence of record contains opinions of etiology favorable to the Veteran's claim and an opinion that rejects the Veteran's claim. Greater weight may be placed on one physician's opinion over another depending on factors such as the extent to which they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36,40 (1994). Additionally, the thoroughness and detail of a medical opinion are among the factors for assessing the probative value of the opinion. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). With these considerations in mind, the Board finds that the favorable opinions have less probative value than the September 2009 VA examiner's opinion. The Board observes that the March 2005 physician's opinion indicated that the Veteran's left shoulder disability was a result of his in-service left shoulder injury, which was "identified by his service medical records." The Board notes that while an October 1970 service treatment record noted a complaint of left shoulder symptomatology, there is no objective evidence of a left shoulder abnormality or the actual occurrence of a left shoulder injury during military service. The "in-service left shoulder injury" also played a role in the opinions offered by the March 2005 orthopedist and April 2009 VA examiner. Significantly, not only did the March 2005 and April 2009 VA examiner fail to comment upon the Veteran's private treatment records, the Veteran's private treatment records were not even noted by the examiners. On the other hand, the September 2009 VA orthopedist explicitly referenced the Veteran's service, private and VA records, and commented upon their relevancy. As noted by the September 2009 VA orthopedist, not only was no left shoulder disability noted during service, there was no objective evidence of left shoulder disability until years following service (in 1989). The Board here observes that the September 2009 VA orthopedist's observations concerning the November 1991 normal whole body bone scan is not even discussed by the March 2005 and April 2009 VA examiner. The Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first hand knowledge (i.e., experiencing or observing left shoulder problems during or after service). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Here, however, as the Veteran simply does not have the necessary medical training and/or expertise, he is not competent to opine as to whether he has developed left shoulder disability as a result of his military service. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). In short, the evidence of record reveals that the first objective medical evidence of left shoulder osteoarthritis was approximately 19 years following service. Since the medical evidence of record indicates that the Veteran did not have chronic left shoulder disability during service, nor within a year of discharge from service, and since the most probative medical opinion indicates that his current left shoulder disability is not related to service (and a showing of continuity of symptomatology after service has not been demonstrated, as no left shoulder osteoarthritis was shown on the November 1991 whole body scan), the preponderance of the evidence is against service connection for left shoulder disability. In this regard, the Board finds that the Veteran's assertions as to continuity of symptomatology are less than credible. While the Board acknowledges that the absence of any corroborating medical evidence supporting assertions, in and of itself, does not render lay statements incredible, such absence is for consideration in determining credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of Veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible). See also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (noting that lay evidence can be competent to establish a diagnosis when . . . a layperson is competent to identify the medical condition.) The Board finds the Veteran's statements that he has had a left shoulder disability since service to be less than credible when considered with the record as a whole. The Board has been mindful of the "benefit-of-the-doubt" rule, but, in this case, there is not such an approximate balance of the positive evidence and the negative evidence to permit a favorable determination. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a left shoulder disability is denied. ____________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs