Citation Nr: 1040968 Decision Date: 11/01/10 Archive Date: 11/12/10 DOCKET NO. 05-12 431 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a chronic right shoulder disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Poulson, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1966 to October 1970. This matter comes before the Board of Veterans' Appeals (Board) from a December 2003 decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified before the undersigned Veterans Law Judge in October 2007. A transcript of the hearing is of record. In January 2008, the Board denied service connection for a right shoulder disorder. The Veteran appealed this decision to the Court of Appeals for Veterans Claims (the Court) which, based on a March 2009 Joint Motion for Remand (JMR), vacated the Board's January 2008 decision and remanded the matter to the Board for action consistent with the JMR. In December 2009, the Board remanded the case so that a VA examination could be scheduled. The claim is now ready for appellate review. FINDING OF FACT A chronic right shoulder disorder was not shown during service or for many years thereafter. The current right shoulder disorder is not related to active service. CONCLUSION OF LAW A right shoulder disorder was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.159, 3.102, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002). If a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2010). However, continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b) (2010). Further, 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 U.S.C.A. § 1113(b) (West 2002); 38 C.F.R. § 3.303(d) (2010). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. Degenerative joint disease is a listed chronic disease for purposes of presumptive service connection. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). The applicable presumptive period is one year following separation from service. 38 C.F.R. § 3.307(a)(3). The Veteran contends that his current right shoulder disorder is related to a 1969 in-service diving accident. A service treatment record dated August 1969 shows that he had a history of a right shoulder strain secondary to swimming and diving, but that his condition was improving. A September 1969 records show that the Veteran had suffered a right shoulder strain several months earlier and continued to complain of intermittent pain with movement. There was no tenderness upon examination. There was full range of motion with pain except anteriorally. Strength was 100/100. The initial X- ray suggested acromioclavicular (A/C) shoulder separation, but an X-ray taken the following day with comparison views of the left shoulder revealed no radiographic abnormalities. The impression was fibrositis. The September 1970 separation examination shows a normal clinical evaluation of the upper extremities. The clinician noted occasional right shoulder pain with no complication or sequela. Therefore, a chronic right shoulder disorder was not shown in the service treatment records at the time of separation. Further, the neither medical nor X-ray evidence of arthritis of the right shoulder is shown within one year of service and it is not contended otherwise. Thus, presumptive service connection for arthritis of the right shoulder is not warranted. Next, post-service medical evidence does not reflect right shoulder symptomatology for many years after service discharge. Specifically, the Veteran was diagnosed with scleroderma in 2002 and filed his claim for a right shoulder disorder in July 2003. In an October 2003 VA joints examination, the Veteran complained of daily pain of two years' duration and difficulty lifting heavy objects with his right arm, dating the onset of current pathology to 2001. However, he related having right shoulder pain after service, "but not on a regular basis." He acknowledged that in approximately 1997, he was lifting weights at work when his right shoulder gave out. He reportedly had an X-ray at the time, but could not remember anything specific other than being told that nothing could be done. He submitted a statement from a private physician who recalled treating him in the 1990s but no treatment records were available. Even assuming symptomatology related to a right shoulder disorder in the late 1990s, this was more than 25 years after service separation. Therefore, the medical evidence does not reflect continuity of symptomatology. In this decision, the Board has considered the lay evidence as it pertains to the issue. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). As part of the current VA disability compensation claim, in recent statements and sworn testimony, the Veteran has asserted that his right shoulder symptoms have been continuous since service. He asserts that he continued to experience symptoms relating to the shoulder, including pain, after he was discharged from the service. After a review of the evidence, the Board concludes that his assertion of continued symptomatology since active service, while competent, is not credible. The Board finds that the Veteran's more recently-reported history of continued right shoulder symptoms since active service is inconsistent with the other lay and medical evidence of record. Indeed, while he now asserts that his disorder began in service, in the more contemporaneous medical history he gave at the time of service separation examination, while occasional right shoulder pain was reported, no chronic right shoulder pathology was identified. Specifically, the service separation examination report reflects that the Veteran was examined and his upper extremities were was found to be clinically normal. His in-service history of symptoms and absence of chronic pathology at the time of service separation is more contemporaneous to service, so is of more probative value than the more recent assertions of chronic pathology made many years after service separation. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the veteran wrote during treatment than to his subsequent assertion years later). Further, the Veteran has reported the onset of symptoms to different times. Specifically, when he filed his claim, he did not indicate that he had had any treatment for his right shoulder. The section inquiring on when his disability began or when he was treated was left blank. He only reported that he was treated during service. This suggests to the Board that he had not had any other treatment for his right shoulder except for his service treatment records. On the other hand, in an October 2003 VA examination, he reported on and off pain in the right shoulder since service but acknowledged that he sustained an injury to his right shoulder six years previously when lifting weights, dating the onset of problems to 1997, but also reported continuous pain for two years, dating the current symptoms to 2001. Dating the onset of symptoms to the 1990s is consistent with a statement by a private chiropractor associated with the claims file. Next, the Veteran indicated that he dislocated his right shoulder in service, but this is not consistent with the contemporaneous evidence of records. While the Veteran clearly sought treatment for right shoulder symptomatology, X-ray evidence did not show a dislocation. Moreover, in an October 2003 VA examination, the Veteran reported that he injured his right shoulder when he fell; however, the contemporaneous service records reflect that he suffered from a "strain" secondary to swimming and diving. In fact, the service treatment record specifically noted "no hx [history] of shoulder injury." Nonetheless, these inconsistencies in the record weigh against the Veteran's credibility as to the assertion of continuity of symptomatology since service. See Madden v. Gober, 125 F.3d 1477, 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). Next, the post-service medical evidence does not reflect complaints or treatment related to a right shoulder disorder for more than 20-years following active service. The Board emphasizes the multi-year gap between discharge from active duty service (1970) and initial reported symptoms related to a right shoulder disorder in the 1990s (a 20+-year gap). See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). The Board has weighed the Veteran's statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than the more contemporaneous in-service history and findings at service separation and the absence of complaints or treatment for years after service. For these reasons, the Board finds that the weight of the lay and medical evidence weighs against a finding of continuity of symptoms since service separation. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's right shoulder disorder to active duty, despite his contentions to the contrary. As noted above, in an October 2003 VA joints examination, the Veteran complained of daily pain of two years' duration and difficulty lifting heavy objects with his right arm. He related having right shoulder pain after service "but not on a regular basis" and noted a right shoulder injury in 1997 when lifting weights at work. After a physical examination, the diagnosis was "[s]ervice connected right shoulder injury, with history of right shoulder strain as a result," although X-rays were normal. This opinion neither supports nor weighs against the claim because, although the examiner characterized the right shoulder as "service connected," there was no disability shown at that time. Moreover, the examiner offered no rationale for his opinion. Next, a November 2004 MRI showed (1) the suggestion of a Rim-Rent tear of the supraspinatur tendon, and (2) degenerative changes of the glenohumeral joint and labrum; however, no opinion was rendered as to etiology. In April 2005, the Veteran underwent another VA examination by the same examiner. He reported that he injured his right shoulder in a 1969 diving accident, and re-injured the shoulder in 1997 or 1998 while lifting weights at work. He stated that he "saw somebody about it at that time" and that the doctor told him "something is wrong with it." The Veteran complained of constant pain and difficulty lifting heavy objects with his right arm. After a physical examination, the examiner wrote: "[t]he veteran did have a right shoulder strain when he was in the service. Cannot relate any chronic condition in the right shoulder to the service without the resort to speculation, because of the time frame, and the second injury." This opinion neither supports nor weighs against the claim because of its speculative nature. As part of a Board remand, the Veteran underwent a third VA examination in February 2010. At that time, he reported persistent right shoulder pain since 1969. The examiner wrote that the Veteran "began seeing physicians for problems related to his right shoulder," but the time frame was unclear. He complained of stiffness and tenderness, and monthly flare-ups of several minutes' duration, which he described as severe. After a physical examination and a review of the claims file, to include the October 2003 X-ray, November 2004 MRI, and VA treatment records, the examiner diagnosed degenerative joint disease of the right shoulder. He opined that the Veteran's right shoulder disorder "is less likely than not related to events that occurred in military service." He explained that while the initial 1969 X-ray suggested A/C separation, an X-ray taken the next day with comparison views of the left shoulder revealed no radiographic abnormalities. The examiner determined that there was no evidence of a dislocated right shoulder. He specifically noted in his rationale that the Veteran had suffered a work-related right shoulder injury in 1997, but indicated that those records were unavailable. Moreover, the most probative evidence that addresses the question of a nexus between a current right shoulder disorder and service weighs against the contended causal relationship. The February 2010 VA examiner reviewed the evidence, discussed the evidence, and concluded that there was no causal relationship between a current right shoulder disorder and service. He determined that there was no evidence of a dislocated right shoulder. The examiner explained that while the initial September 1969 X- ray suggested acromioclavicular shoulder separation, an X-ray taken the following day with comparison views of the left shoulder revealed no radiographic abnormalities. He acknowledged the 1997 work-related injury, but noted that the records were unavailable. The Board finds that the examination was adequate for evaluation purposes. Specifically, the examiner reviewed the claims file, interviewed the Veteran, and conducted a physical examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Therefore, the Board finds the VA examiner's opinion to be of great probative value. The Board has also considered the Veteran's statements and sworn testimony asserting a nexus between his currently-diagnosed disorder and active duty service. While the Board reiterates that he is competent to report symptoms as they come to him through his senses, a chronic right shoulder disorder is not the types of disorder that a lay person can provide competent evidence on questions of etiology or diagnosis. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. See Cartright, 2 Vet. App. at 25. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeal is denied. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 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) (2010). Proper notice from VA must inform the claimant of any information and medical or lay 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. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2002). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. The RO provided the Veteran pre-adjudication notice by letter dated in August 2003 and post-adjudication notice by letter dated in December 2005. The August 2003 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; and 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. Although the August 2003 letter did not advise the Veteran of the laws regarding degrees of disability or effective dates for any grant of service connection, no new disability rating or effective date for award of benefits will be assigned as the claim of service connection for a right shoulder condition is denied. Accordingly, any defect with respect to that aspect of the notice requirement is rendered moot. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). VA has obtained service treatment records (STRs) and VA treatment records, assisted the Veteran in obtaining evidence, provided him three examinations, and afforded him the opportunity for a hearing. He did identify additional providers, but states that those records are unavailable. All known and available records relevant to the issue on appeal have been obtained and associated with the claim file. The Veteran's representative has expressed concern regarding the sufficiency of the February 2010 VA medical opinion. Specifically, he contends that the examiner did not reconcile the different conclusions contained in the October 2003 and April 2005 examination reports, as instructed by the December 2009 Remand Order. The October 2003 and April 2005 reports were authored by the same examiner, while a different clinician conducted the February 2010 examination. The February 2010 examiner cannot be expected to explain a discrepancy between the other VA examination reports since he did not author those opinions. Furthermore, the Board has found that neither the October 2003 nor the April 2005 opinions are adequate. On the other hand, the February 2010 VA examination is sufficient for purposes of evaluating the etiology of the Veteran's right shoulder disorder. The examiner reviewed the claim file, which included private treatment records as well as VA treatment records and service treatment records. He determined that there was no evidence that the Veteran dislocated his right shoulder during service. The VA examiner further opined that the Veteran's current disability "is less likely than not related to events that occurred in military service." This statement is a clear and adequate opinion of etiology for purposes of establishing service connection. For these reasons, the Board finds that the February 2010 VA examination was adequate and also substantially complied with the mandates of the Board's December 2009 remand for a VA examination and opinion on etiology. Therefore, a remand for another VA examination and opinion is not warranted in order to obtain full compliance with the Board's previous remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). In sum, 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 right shoulder disorder is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs