Citation Nr: 1120416 Decision Date: 05/25/11 Archive Date: 06/06/11 DOCKET NO. 09-07 359 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUES 1. Entitlement to service connection for a right shoulder disorder. 2. Entitlement to service connection for a left shoulder disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Scott Shoreman, Associate Counsel INTRODUCTION The Veteran had active service from October 1987 to March 1990. This matter comes before the Board of Veterans' Appeals (Board) from a September 2007 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO). This claim was previously before the Board in June 2010, at which time the Board remanded it for additional development. The requested development has been completed, and the claim is properly before the Board for appellate consideration. FINDINGS OF FACT 1. The competent and probative evidence preponderates against a finding that the Veteran has a right shoulder disorder which is due to any incident or event in active service, and arthritis related to the right shoulder was not manifested either in service or within one year after separation from service. 2. The competent and probative evidence preponderates against a finding that the Veteran has a left shoulder disorder which is due to any incident or event in active service, and arthritis related to the left shoulder was not manifested either in service or within one year after separation from service. CONCLUSIONS OF LAW 1. A right shoulder disorder was not incurred in or aggravated by service, nor may arthritis be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2010). 2. A left shoulder disorder was not incurred in or aggravated by service, nor may arthritis be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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 notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1). 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). If complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent legally adequate VCAA notice, followed by readjudication of the claim, as in a Statement of the Case (SOC) or Supplemental SOC (SSOC). Moreover, where there is an uncured timing defect in the notice, subsequent action by the RO which provides the claimant a meaningful opportunity to participate in the processing of the claim can prevent any such defect from being prejudicial. Mayfield v. Nicholson, 499 F.3d 1317, 1323-24 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U.S. Supreme Court has held that an error in VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In this case, the appellant has not demonstrated any prejudicial or harmful error in VCAA notice, and, as discussed below, the Board has found none. In July 2007 VA sent the Veteran a letter informing him of the types of evidence needed to substantiate his claim and its duty to assist him in substantiating his claim under the VCAA. The letter informed the Veteran that VA would assist him in obtaining evidence necessary to support his claim, such as medical records, employment records, or records from other Federal agencies. He was advised that it is his responsibility to provide or identify, and furnish authorization where necessary for the RO to obtain, any supportive evidence pertinent to his claim. See 38 C.F.R. § 3.159(b)(1). Although no longer required, the appellant was also asked to submit evidence and/or information in his possession to the RO. The Board finds that the content of the letter provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify and assist. In addition, the September 2007 rating decision, February 2009 SOC, and March 2011 SSOC explained the basis for the RO's action, and the SOC and SSOC provided him with additional periods to submit more evidence. It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to VA notices. In addition to the foregoing harmless-error analysis, we note that the decision of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006) requires more extensive notice in claims for compensation, e.g., as to potential downstream issues such as disability rating and effective date. This requirement was fulfilled in the July 2007 letter which VA sent to the Veteran. The Board finds that the VA examination which the Veteran underwent for his shoulders was sufficient, because the examiner supported her conclusions with analysis which can be weighed against the other evidence of record. Stefl v. Nicholson. 21 Vet. App. 120, 124 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (The Board "must be able to conclude that a medical expert has applied valid medical analysis to the significant facts of the particular case in order to reach the conclusion submitted in the medical opinion."). Accordingly, we find that VA has satisfied its duty to assist the Veteran in apprising him as to the evidence needed, and in obtaining evidence pertinent to his claim under the VCAA. Therefore no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefits flowing to the Veteran. The Court of Appeals for Veteran Claims has held that such remands are to be avoided. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court of Appeals for Veterans Claims held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail. The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim." Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert. II. Relevant Law, Factual Background, and Analysis Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303(a) (2010). Service connection may be granted for a disease that is 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); 38 C.F.R. § 3.303(d). Where there is a chronic disease shown as such in service or within a presumptive period under 38 C.F.R. § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). When the disease identity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Generally, in order to establish service connection for a claimed disorder, the following must be shown: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). See Caluza v. Brown, 7 Vet. App. 498, 506 (1995); aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303(a). Alternatively, service connection based on continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances lay evidence of a nexus between the present disability and the symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96; see Hickson, supra, at 253 (lay evidence of in-service incurrence is sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). As provided by 38 U.S.C.A. § 1154(a), VA is required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Citing Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) and Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit has stated that competent medical evidence is not required when the determinative issue in a claim for benefits involves either medical etiology or a medical diagnosis. Instead, under section 1154(a), lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, the lay person is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In addition, the law provides that, where a veteran served ninety days or more of active military service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such 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. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. Reviewing the evidence of record, the service treatment records show that in June 1988 the Veteran complained of left shoulder pain when moving and carrying heavy objects at work. He was put on a limited-duty physical profile for a week, with no lifting of more than 45 pounds. In addition, he was to avoid painful activities and was not to lift his arms over his head. At treatment the following week, he was diagnosed with left shoulder tendonitis, and was to continue taking Motrin and remain on a profile for another week. In March 1989 the Veteran reported trauma to the right shoulder. He complained of pain with no crepitus, and was diagnosed with a right shoulder strain. He was put on a profile that prevented him from lifting, pushing, or pulling for approximately a week. In July 1989 he was put on a profile which stated he was qualified as a military driver except for the operation of heavy equipment. The Veteran wrote in a July 2007 statement that he had developed pain in his shoulders from using and lifting heavy construction equipment in service. Furthermore, during four war exercises he had carried an 80-pound field pack, and the stress on his shoulders had caused bilateral shoulder pain. He wrote that when he went to sick call he was given Vicodin and told to rest. Since service, he had undergone repeated massages and treatment with a chiropractor to relieve the pain. The post-service treatment records show that the Veteran had private chiropractic treatment for his shoulders with M.J.W., D.C., P.A., from 2005 to 2008. The Veteran wrote on an August 2005 form for his chiropractic treatment that he had had right shoulder pain for "10+" years and that he had "no clue" as to when and how it had begun. September 2007 VA treatment notes indicate that he had bilateral shoulder pain which he rated as a 10 out of 10. At treatment the following month he rated his shoulder pain as a 9 out of 10 in intensity, and said that he took Tylenol with codeine for it. He felt the pain in the muscles of his neck, and it went down his arms, causing tingling in the fingertips. The pain lasted for 30 minutes and caused him to have difficulty picking up coffee mugs. For the prior 3 to 4 months the Veteran had had a tendency to drop objects. There was some tenderness over the C4-5 region on palpation. Neck range of motion did not have any significant limitation, but the pain was reproduced with active side-to-side cervical motion. The neck and shoulder muscles were very tense. He was unable to raise his arms over 80 degrees. The assessment was bilateral shoulder pain with decreased range of motion and cervical radiculopathy. October 2007 X-rays of the shoulders were normal. A physician wrote that that the pain could be related to tense muscles in the neck and shoulder region, and she suggested that the Veteran take the amitriptyline she had prescribed. March 2008 VA physical therapy discharge treatment notes indicate that the Veteran had pain that was exacerbated by work and that increased to a level of up to 8 or 9 by the end of the week. He was using a TENS unit with some relief. During a period of two weeks when he was unable to work due to illness the Veteran had very little pain. The assessment was that the pain was exacerbated by work. Dr. W reviewed the Veteran's records in September 2008 and noted that there was no record of injuries or trauma to his shoulders after military service. She opined that the Veteran's chronic bilateral shoulder dysfunction and pain were more likely than not related to his military duty and training. At October 2008 VA treatment the Veteran reported that he was still having shoulder pain. The Veteran wrote in a February 2009 statement that in the period from August 2005 to September 2005 his work did not involve heavy lifting and that he had employees who performed manual labor for him. He wrote in a May 2010 statement that for the last 10 to 12 months of his military service he had worked in a light duty position at the base gymnasium. He continued that he went to the doctor infrequently after service because of finances and a lack of insurance. He further stated that within a few years of service he had shoulder and back problems, and that the records were no longer available from the medical treatment he had received during that period. L.R., LMTCMT, wrote in May 2010 that the Veteran had been referred to her by Dr. W due to shoulder dysfunction and pain which was likely a result of military service. Ms. R opined that without proper treatment the Veteran would continue to suffer from limited mobility and chronic pain. The Veteran had a VA examination in August 2010 at which he reported that his shoulder pain had gotten progressively worse since its onset. His treatment at the time of the examination consisted of Motrin, Aleve, or over-the-counter medication, muscle massages, and physical therapy. The response to treatment had been fair. The pain level averaged 7 to 9 out of ten, and could flare up to a level of 10 of 10. Symptoms included instability, pain, stiffness, weakness, incoordination, decreased speed of joint motion, decreased motion, and flare-ups that occurred every 2 to 3 weeks and lasted for hours. The Veteran had difficulty holding objects in his hands due to shoulder pain and his sleep was disturbed. Precipitating factors for flare-ups were lifting and carrying heavy loads, cold weather, or holding his arms over his head. Alleviating factors were massages, icy hot rub, soaking in warm water, and over-the-counter Motrin. On examination, range of motion of the left shoulder was flexion 0 to 160 degrees, abduction 0 to 160 degrees, internal rotation 0 to 70 degrees, and external rotation 0 to 75 degrees. Range of motion of the right shoulder was flexion 0 to 152 degrees, abduction 0 to 152 degrees, internal rotation 0 to 80 degrees, and external rotation 0 to 75 degrees. There was objective evidence of pain on motion of both shoulders. X-rays of the shoulders were normal. It was noted that an MRI of the right shoulder from August 2009 showed mild acromioclavicular joint arthroscopy resulting in mild medial arch stenosis and no evidence of a rotator cuff tear. The examiner diagnosed the Veteran with chronic pain and limitation of range of motion of the shoulders with no apparent disability found on X-ray and only mild, age-related changes per MRI. He felt that the Veteran had no current disability and that therefore there is no current disorder that could be related to the in-service incidents discussed above. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996); 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. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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"). In this case, there is no dispute that Veteran is competent to report symptoms related to his shoulders such as pain, because this requires only personal knowledge, as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994). 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. See Jandreau, 492 F.3d at 1377, n.4 (Fed. Cir. 2007) ("Sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer."). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination. The Board finds that the Veteran is not entirely credible as to having shoulder pain since his active service. Specifically, it is noted that on an August 2005 form he filled out for chiropractic treatment, he wrote that he had had right shoulder pain for "10+" years and that he had "no clue" when and how it occurred. Therefore, while the Veteran's shoulder pain was noted during service and the record shows he has had pain in recent years, there is not credible evidence of continuity of symptomatology since service. See 38 C.F.R. § 3.303(b). To the extent that the Veteran complains of shoulder pain, pain itself is not a disability for VA purposes. A symptom alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability. Without a pathology to which the complaints of hip pain can be attributed, there is no basis to find a hip disorder for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted). In the present case, the Veteran was diagnosed with left shoulder tendonitis and a right shoulder strain during service. However, the August 2010 VA examiner found that there was no current disorder, and the VA treatment notes do not show a diagnosis for the shoulders beyond shoulder pain. While a Board finding that the Veteran had the disability "at some point during the processing of his claim," can satisfy the service connection requirement for manifestation of current disability, in the present case there is no evidence showing that the Veteran has had a shoulder disorder since he filed his claim. McClain v. Nicholson, 21 Vet. App. 319, 323 (2007). Dr. W opined in September 2008 that there is a connection between the Veteran's military service and his shoulder symptoms. This is competent evidence of whether there is a causal connection related to the Veteran's military service. However, Dr. W's opinion cannot be given probative value because it does not contain the requisite detail, to include discussion of in-service problems and a rationale for the positive nexus statement, to permit reliance upon it in deciding this case. See Nieves-Rodriguez, 22 Vet. App. at 304; Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Furthermore, Dr. W mentioned the Veteran having symptoms and dysfunction related to his shoulders but did not make an actual diagnosis. See McClain, 21 Vet. App. at 323. We recognize the sincerity of the arguments advanced by the Veteran that he has right and left shoulder disorders are service connected. However, the resolution of issues that involve medical knowledge, such as the diagnosis of a disability and the determination of medical etiology, requires professional evidence. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). It is true that the Veteran's lay statements may be competent to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. §§ 3.303(a), 3.159(a); see Jandreau, supra; Buchanan, supra (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when a lay person is competent to identify the medical condition, the lay person is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson, supra. However, a specific shoulder disability requires specialized training for a determination as to diagnosis and causation, and is therefore not susceptible of lay opinions on etiology. In the present case, there is no competent and probative medical opinion which establishes a link between a current shoulder disorder and active military service. Because the evidence preponderates against the claim of service connection for right and left shoulder disorders, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a right shoulder disorder is denied. Service connection for a left shoulder disorder is denied. ____________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs