Citation Nr: 1037501 Decision Date: 10/04/10 Archive Date: 10/12/10 DOCKET NO. 07-33 967 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to an initial compensable rating for bilateral hearing loss. 3. Entitlement to an initial compensable rating for a left knee disability. REPRESENTATION Appellant represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. J. Houbeck, Associate Counsel INTRODUCTION The Veteran had active service from October 1981 to October 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2005 rating determination of a Regional Office (RO) of the Department of Veterans Affairs (VA) in Winston-Salem, North Carolina. The Veteran had a hearing before the undersigned Veterans Law Judge in July 2010. A copy of the transcript was reviewed and associated with the claims file. The RO's December 2005 rating decision also granted service connection for right shoulder status post arthroscopic subacromial decompression and acromioclavicular joint resectional arthroplasty and service connection for a right shoulder surgical scar, assigning a noncompensable rating for each. The Veteran disagreed with the ratings assigned. A Statement of the Case (SOC) was issued in September 2007. However, no substantive appeal was ever received with respect to these evaluation issues. Specifically, the Board notes that the Veteran's October 2007 substantive appeal appealed only the issues listed on the title page. In addition, the Veteran filed a contemporaneous statement that discussed these issues. Neither document discussed the service-connected right shoulder disability or the scar of the right shoulder. The Board notes that the statement submitted with the substantive appeal does raise the possibility that the Veteran was attempting to appeal the right shoulder issue, rather than the left shoulder; however, the Board resolves the doubt by taking the left shoulder claim as having been appealed, as delineated in both the substantive appeal and supporting document. As such, the right shoulder disability and right shoulder scar issues are not currently in appellate status. In reaching this conclusion, the Board considered the recent case of Percy v. Shinseki, 23 Vet. App. 37 (2009), wherein the United States Court of Appeals for Veterans Claims (Court) found 38 U.S.C.A. § 7105 was not intended to foreclose the Board's exercise of jurisdiction over a matter in which a substantive appeal was untimely. Consequently, because the 60-day filing period is not jurisdictional, VA may waive any issue of timeliness in the filing of the substantive appeal, either explicitly or implicitly, and is not required to close an appeal for failure to file a timely substantive appeal. Unlike the circumstances in Percy, however, the Board is not herein dismissing an appeal based on the substantive appeal being inadequate or untimely. Rather, the Board is finding that a substantive appeal was never submitted, and that the Veteran clearly intended to limit his appeal to the issues listed on the title page. The Board acknowledges that testimony was taken on the right shoulder disability and the right shoulder scar during the July 2010 Board hearing. However, the undersigned clearly explained to the Veteran during the course of the hearing that these two issues might not have been properly appealed to the Board and, consequently, not in appellate status. As such, the Board has not waived any issues of timeliness in filing of the substantive appeal or otherwise treated the appeal as though it were in appellate status such that failure to adjudicate the issues would unfairly prejudice the Veteran. The issues of entitlement to initial compensable ratings for bilateral hearing loss for a left knee disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The preponderance of the evidence is against finding that the Veteran has a left shoulder disability that is etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW A left shoulder disability was not incurred in or aggravated by service, and may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim for service connection, the Department of Veteran's Affairs (VA) has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and 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). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in April 2005 satisfied many of the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2010); 38 C.F.R. § 3.159(b)(1) (2009); Quartuccio, at 187. The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Since the Board has concluded that the preponderance of the evidence is against the claim for service connection, any questions as to the appropriate disability ratings or effective dates to be assigned are rendered moot, and no further notice is needed. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records are in the file. The claims file does not reflect that the Veteran has sought treatment through the VA system. Private treatment records identified by the Veteran have been obtained, to the extent possible. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2009). In this case, the Board notes that the Veteran was provided a VA examination in May 2005. The VA examiner considered the Veteran's reports of left shoulder problems beginning in service, but after hearing the Veteran's reported history, his service treatment records, and conducting a physical examination, the examiner was unable to diagnose the Veteran with a current left shoulder disability. Based on the foregoing, the Board finds the May 2005 VA examination report to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim for service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110, 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2009). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2009). For veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.307, 3.309 (2009). In the instant case, there is no presumed service connection because the Veteran was not diagnosed with arthritis of the left shoulder within one year of service; indeed, the claims file does not indicate, nor does the Veteran contend, that he has ever been diagnosed with arthritis of the left shoulder. In the absence of presumptive service connection, to establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that he has a current left shoulder disability that is related to his military service. Specifically, the Veteran contends that carrying rucksacks over the years caused his current left shoulder problems. The Veteran's service treatment records include multiple complaints of left shoulder problems. During September 1981, December 1985, July 1988, and May 1991 medical examinations, the Veteran's upper extremities were noted as normal. In September 1981 and July 1988 the Veteran denied a history of painful or "trick" shoulder. In December 1992, the Veteran complained of left shoulder pain for two weeks. The Veteran had noted crepitus and pain on movement, but good range of motion. The treating professional assessed possible bursitis. A further examination that day showed no evidence of atrophy, laxity, or problems with the rotator cuff or biceps, but with tenderness at the acromioclavicular joint. The examiner assessed acromioclavicular joint pain / sprain on left and noted that such was probably secondary to overuse. The Veteran was put on a profile of limited activity involving the left arm for four weeks. In January 1993, the Veteran reported left shoulder pain for four weeks. The Veteran had difficulty moving his arm back, up, and forward. The initial treatment provider assessed a strained shoulder muscle and referred the Veteran to a physician assistant, who assessed acromioclavicular joint pain. The Veteran's shoulder was tender, but with normal strength and no obvious swelling. X-rays of the left shoulder were normal. Two days later, the Veteran's pain had spread along the anterior and posterior rotator cuff and there was no tenderness of the acromioclavicular joint. The Veteran had decreased extension, flexion, and abduction and was assessed with rotator cuff tendonitis for which he was put on profile and prescribed ice, ointment, and rest. In December 1983, the Veteran injured his left elbow falling off a motor bike. In June 2000, the Veteran complained of left shoulder pain for the past twenty days following two days of water skiing. The Veteran reported constant pain in the front and back of the shoulder, which was worsened with lifting. The examiner assessed a rotator cuff injury. In August 2000, the Veteran was seen for follow-up of left shoulder impingement syndrome and rotator cuff tendonitis. The Veteran felt that he was progressing and the examiner assessed rule out possible labral tear. In May 2001, the Veteran reported joint stiffness or pain, without specificity. In May 2005, while still in service, the Veteran was afforded a VA examination. The Veteran reported first injuring his left shoulder in January 1993, while in Germany, and reinjuring the shoulder in June 2000. The Veteran claimed current symptoms of popping and grinding and discomfort with overuse. The Veteran noted that these symptoms occurred intermittently as often as twice per month and lasting for two days per occurrence. The flare-ups did not impair the ability to perform activities of daily living, but did cause pain. The Veteran denied any current treatment for the left shoulder problems. On examination, the left shoulder appeared to be within normal limits and the Veteran had normal range of motion. Contemporaneous x-rays were within normal limits. Based on the foregoing, the examiner concluded that there was no pathology to render a diagnosis of a left shoulder condition. After service, in June 2006 the Veteran showed no musculoskeletal symptoms. In February 2008, the Veteran reported chronic left shoulder pain that had been significantly exacerbated with the start of a weight training program. Specifically, the Veteran noted increased symptoms with pushing and elevation of the shoulder. The Veteran had tenderness to palpation over the posterior deltoid, external rotators, and acromioclavicular joint. The examiner assessed left shoulder impingement syndrome. In March 2008, the examiner clarified the diagnosis as mostly resolved acute left impingement syndrome. The Veteran also complained of left shoulder problems in June 2010. Initially, the Veteran reported arthalgia of the bilateral shoulders, but had normal movement of extremities on examination. The Veteran received multiple steroid injections in his left shoulder, specifically in the bicipital tendon, as well as acupuncture treatment. The Veteran was subsequently diagnosed with bicipital tendonitis. Having reviewed the complete record, the Board concludes that the preponderance of the evidence is against finding that the Veteran has a chronic left shoulder disability that was incurred or aggravated by his military service. In that regard, the Board notes that the Veteran has been diagnosed with two disorders of the left shoulder since separation from service, impingement syndrome in February 2008 and bicipital tendonitis in June 2010. With respect to the Veteran's February 2008 diagnosis of impingement syndrome, the Board notes that the Court has held that a veteran's claim may still prevail if the Veteran was diagnosed with a chronic disability during the pendency of the appeal, even if most recent medical evidence suggests the disability resolved. See McClain v. Nicholson, 21 Vet. App. 319 (2007). This claim, however, is distinguishable. As noted above, the treatment provider that initially diagnosed impingement syndrome in February 2008 qualified that diagnosis in March 2008 as mostly resolved acute left impingement syndrome. The provider noted that the Veteran had met his goals and would discontinue clinic follow-up. As clearly noted, the Veteran's impingement syndrome was not a diagnosis of a chronic disability. Rather, the Veteran had an acute and transitory episode of impingement syndrome. Moreover, the treatment provider specifically attributed the acute impingement syndrome to the Veteran's post-service weight-lifting regimen and in no way attributed to military service. Thus, the February and March 2008 episode of acute impingement syndrome is not a chronic disability for which service connection may be granted. The Board also has considered the Veteran's June 2010 diagnosis of bicipital tendonitis. In that regard and as discussed, during service the Veteran had two documented flare-ups of rotator cuff tendonitis, in December 1992 and June 2000. Since service there is no evidence or contention that the Veteran has been diagnosed with left rotator cuff tendonitis. There is no medical evidence of record linking in-service left shoulder problems and any current left shoulder disability, to include bicipital tendonitis. VA afforded the Veteran an examination for the purpose of considering such a link; however, the May 2005 examiner was unable to find any current left shoulder disability. Thus, the medical evidence shows two periods of rotator cuff tendonitis during service and one instance of bicipital tendonitis after service, occurring over a decade after the last documented episode of rotator cuff tendonitis and during which decade the Veteran was examined by a physician contracted by the VA, who was unable to diagnose a current left shoulder disability. The Board acknowledges the Veteran's assertions that he developed his current left shoulder problems in-service. Certainly, the Veteran can attest to factual matters of which he had first-hand knowledge, such as subjective complaints of pain, popping, and grinding, and his testimony in that regard is entitled to some probative weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, even when a veteran is asserting continuity of symptomatology after service, he or she is not necessarily competent to attribute a current disability to that symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-98 (1997). In this instance, the Veteran as a lay person has not been shown to be capable of making medical conclusions, especially as to complex medical diagnoses such as a link between any current bicipital tendonitis of the left shoulder and separate and distinct diagnoses of rotator cuff tendonitis and left shoulder impingement syndrome, or other in-service left shoulder problems. The Board does not consider a layperson's level of expertise sufficient to ascribe a link between disorders of separate and distinct tendons of the left shoulder based on observed symptoms such as pain. The Board finds such a link even more problematic for diagnosis by a layperson given the relatively close proximity between such tendons that could result in erroneous attribution of symptoms, including pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). As the Board may not rely on its own unsubstantiated medical conclusions, Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991), it must rely on an informed medical opinion in order to adjudicate a claim. In this case, there is no competent medical evidence of record ascribing a link between any current left shoulder disability, to include bicipital tendonitis and any in-service left shoulder problems, to include rotator cuff tendonitis. While the Board is sympathetic to the Veteran's sincere belief that he incurred a current left shoulder disability as a result of his military service, the competent medical evidence of record does not support this contention. Therefore, service connection is not warranted. In light of the foregoing, the Board finds that the preponderance of the evidence is against the claim, and the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F.3d 1361 (Fed Cir. 2001). ORDER Entitlement to service connection for a left shoulder disability is denied. REMAND The Veteran also alleges his service-connected bilateral hearing loss and left knee disability warrant initial compensable evaluations. Having reviewed the claims file, the Board finds that additional development is necessary prior to the adjudication of these claims. The Board notes that at the March 2009 Board hearing the Veteran specifically argued that the Veteran's left knee disability had increased in severity since his most recent May 2005 VA examination. In addition, the Veteran stated that his bilateral hearing loss might have increased in severity, noting that it was difficult to remember given how long it had been since the April 2005 VA examination. The United States Court of Appeals for Veterans Claims (Court) has held that a veteran is entitled to a new VA examination where there is evidence, including his statements, that the disability has worsened since the last VA examination. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). The Court has also held that VA's statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). In light of the Veteran's contentions and the amount of time since the previous VA examinations, the claims must be remanded in order to afford the Veteran a VA examination to determine the current severity of his left knee and bilateral hearing loss disabilities. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination, to include a complete physical examination, in order to determine the current severity of his service-connected left knee disability. Any tests deemed necessary should be conducted, and all clinical findings should be reported in detail. The complete claims file must be provided to the examiner for review in conjunction with the examination. The examination report should specifically state the degree of disability present in the Veteran's left knee and his current range of motion, as well as identify any objective evidence of pain, subluxation, or lateral instability. The clinician should also discuss how the Veteran's disability impacts his daily activities of living. The extent of any incoordination, weakened movement and excess fatigability on use should be described. To the extent possible, the functional impairment due to incoordination, weakened movement and excess fatigability on use should be assessed in terms of additional degrees of limitation of motion. Any and all opinions must be accompanied by a complete rationale. 2. Schedule the Veteran for a VA audiological examination to ascertain the current severity of the Veteran's bilateral hearing loss. The claims file should be provided to the appropriate examiner for review and the examiner should note that it has been reviewed. 3. After the above is complete, readjudicate the Veteran's claims. If a complete grant of benefits remains denied, issue a supplemental statement of the case (SSOC) to the Veteran and his representative, and they should be given an opportunity to respond, before the case is returned to the Board. 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. 2009). ______________________________________________ ROBERT E. SULLIVAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs