Citation Nr: 1121408 Decision Date: 06/02/11 Archive Date: 06/09/11 DOCKET NO. 09-47 360 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to service connection for a right shoulder disability. ATTORNEY FOR THE BOARD Danielle L. Sgro, Law Clerk INTRODUCTION The Veteran served on active duty from January 1972 to September 1976 and from January 1977 to January 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania wherein, the RO, in pertinent part, denied service connection for a right shoulder disability. A Board hearing at the RO (Travel Board hearing) was scheduled in October 2010, but the Veteran failed to appear. The hearing notice was not returned from the U.S. Postal Service as undeliverable, and no request to reschedule the hearing has been received. Under these circumstances, the Veteran's Board hearing request is deemed withdrawn. 38 C.F.R. § 20.704(d) (2010). FINDINGS OF FACT 1. The VA has fully informed the Veteran of the evidence necessary to substantiate his claim and the VA has made reasonable efforts to develop such evidence. 2. Right shoulder arthritis and rotator cuff tear were first diagnosed many years after service, and there is no competent medical evidence or opinion of a medical relationship, or nexus, between current right shoulder disability and service. CONCLUSION OF LAW Right shoulder arthritis and rotator cuff tear were not incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.304 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (Court) have been fulfilled. In this case, the Veteran's claim for service connection for right shoulder disability was received in May 2008. Thereafter, he was notified of the general provisions of the VCAA in correspondences dated in May 2008, June 2008, and February 2010. These letters notified the Veteran of VA's responsibilities in obtaining information to assist him in completing his claim, identified his duties in obtaining information and evidence to substantiate his claim, and provided other pertinent information regarding VCAA. Thereafter, the claim was reviewed and a rating decision was issued in December 2008 and a statement of the case was provided to the Veteran in October 2009. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006), Mayfield v. Nicholson (Mayfield III), 499 F.3d 1317 (Fed. Cir. 2007). The Court, in Dingess v. Nicholson, 19 Vet. App. 473 (2006), found that the VCAA notice requirements applied to all elements of a claim. Notice as to this matter was also provided in the May 2008, June 2008, and February 2010 letters. The Veteran has been made aware of the information and evidence necessary to substantiate his claim and has been provided opportunities to submit such evidence. A review of the claims file shows that VA has conducted reasonable efforts to assist him in obtaining evidence necessary to substantiate his claim during the course of this appeal. In this regard, the Veteran's service treatment records and VA treatment records have been obtained and associated with his claims file. A March 2009 private magnetic resonance imaging (MRI) from the Lime Street MRI Group was also submitted. The Board also notes that the Veteran was not provided a VA medical examination or opinion in connection with his claim for service connection for right shoulder disability. See 38 C.F.R. § 3.159(c)(4). In this regard, the Board has considered whether an examination to determine nexus is necessary with respect to this claim, but notes that there is no medical evidence of the claimed disability until many years after the Veteran's military service. Moreover, no lay evidence of record credibly establishes continuity of symptomatology. The Board recognizes that the threshold for whether a present disability may be related to service is a low one. McLendon v. Nicholson, 20 Vet. App. 79 (2006). However, under the circumstances of this case, even such low threshold has not been met. The Board also finds that no further RO action to further develop the record prior to appellate consideration is warranted. In this regard, the Board notes that a May 2006 VA treatment record notes that the Veteran is receiving Social Security Administration (SSA) disability payments based on a back disability, but such records have not been obtained and associated with the claims file. As the records relating to SSA's disability determination have no bearing on the dispositive issue on appeal, and the Veteran has not asserted otherwise, remand to obtain these records would impose unnecessary additional burdens on adjudication resources with no benefit flowing to the veteran, and this is not appropriate. See 38 U.S.C.A. §5103A(b), (c) (West 2002 & Supp. 2008); Baker v. West, 11 Vet. App. 163, 169 (1998); Grivois v. Brown, 6 Vet. App. 136, 139 (1994); Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991). Furthermore, the Veteran has not identified any additional, relevant evidence that has not been requested or obtained. The Veteran has been notified of the evidence and information necessary to substantiate his claim, and he has been notified of VA's efforts to assist him. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). As a result of the development that has been undertaken, there is no reasonable possibility that further assistance will aid in substantiating his claim. Law and Regulations Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. 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 Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage v. Gober, 10 Vet. App. 488, 494-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). 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 post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C. § 1154(a) requires that the VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim to disability or death benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007). In fact, competent medical evidence is not necessarily required when the determinative issue involves either medical etiology or a medical diagnosis. Id. at 1376-77; see also Buchanan v. Nicholson, 451 F .3d 1331, 1337 (Fed.Cir.2006); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept 14, 2009). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted."). Certain chronic diseases such as arthritis may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may 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. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Factual Background and Legal Analysis The Veteran asserts that his current right shoulder disability was incurred in, or is otherwise related to, his military service. In various lay statements, he has reported that he hit his right shoulder against the ship during a lifeboat drill and has had right shoulder pain ever since. At the outset, the Board points out that the Veteran's service treatment records document that he injured his left shoulder during a lifeboat drill in June 1975 and post-service medical records show that he has current left shoulder disability related to this incident. In this regard, the RO granted service connection for a left shoulder disability in an April 2010 rating decision. Although his service treatment records clearly show periodic treatment for left shoulder problems during service, they are unremarkable for any complaints, findings, or diagnosis related to the right shoulder. His January 1971 enlistment examination report and his January 1979 discharge examination report both fail to indicate any right shoulder disability. The first indication of record that the Veteran had any right shoulder problems is in an April 2008 VA outpatient treatment record. At that time, the Veteran said he had experienced right shoulder pain for a long time and that it began during service. On physical examination, range of motion was restricted and there was tenderness along the acromioclavicular (AC) joint. The assessment was rotator cuff tear vs. AC bursitis. A March 2009 private MRI revealed a localized rotator cuff tendon tear at the 12:00 position and some degenerative changes at the AC joint. In this case, when the Veteran initially filed his claim in May 2008, he said he injured his right shoulder in June 1975. He also submitted information from a newspaper clipping pertaining to the lifeboat incident, but the article only mentions that he injured his shoulder without indicating which one. In his October 2009 substantive appeal, the Veteran stated that he believed he injured both shoulders during this incident. The Board acknowledges that the Veteran, as a layperson, is competent to report on matters observed or within his or her personal knowledge, such as an injury to the right shoulder. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 470 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007). Moreover, the Veteran is competent to report a continuity of symptomatology. See Charles v. Principi, 16 Vet. App. 370 (2002). Here, however, the Veteran's statements concerning the onset of his right shoulder disability are not credible. In this regard, the Board points out that while the evidence clearly shows the Veteran injured his left shoulder during service, there is no indication that he also injured his right shoulder. The evidence suggests that the Veteran is confused as to which shoulder he actually injured during the lifeboat drill, which is consistent with the considerable length of time between the events in service and when he filed a claim for compensation. As to his later statements that he injured both shoulders during this incident, these statements contradict the contemporaneous medical records, which only show complaints and treatment of a left shoulder injury. The Board finds that the contemporaneous medical evidence is more probative on this issue than the Veteran's later recollections of events that occurred over 35 years ago. For these reasons, the Board does not find that the Veteran's statements concerning the onset of his right shoulder disability and continuity of symptomatology are credible. In this case, the first medical evidence that the Veteran had right shoulder disability was not until April 2008- over 29 years after separation from active duty. The Board notes that the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that weighs against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Moreover, none of the Veteran's medical records includes any comment or opinion relating the Veteran's right shoulder disability to his military service. Although the Board has considered the written statements of the Veteran to the extent that any such lay statements are being offered to answer the question of whether the Veteran's current right shoulder disability is related to service, such evidence must fail. Such matters are within the province of trained medical professionals. Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As the Veteran is a layperson without the appropriate medical training or expertise, he is not competent to render probative (i.e., persuasive) opinions on these medical matters. See Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Consequently, the lay assertions as to the etiology of the Veteran's current right shoulder disability have no probative value. In reaching the above conclusion, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C.A. § 5107(b). ORDER Service connection for a right shoulder disability is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs