Citation Nr: 1123077 Decision Date: 06/16/11 Archive Date: 06/28/11 DOCKET NO. 07-40 313 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for right shoulder disorder (claimed as right shoulder instability). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran, who is the Appellant in this case, served on active duty from June 1987 to October 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision, dated May 2007, of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran requested a Board personal hearing in December 2007. Because the Veteran failed to appear for the hearing, the Board hearing request is considered withdrawn, and the Board will proceed with its adjudication of the appeal. See 38 C.F.R. § 20.704(d) (2010); accord Anderson v. Brown, 9 Vet. App. 542, 546-47 (1996). FINDINGS OF FACT 1. The Veteran sustained a right shoulder injury in service. 2. Right shoulder disorder symptoms were chronic in service. 3. Right shoulder disorder symptoms have not been continuous since service separation. 4. The Veteran does not have a current right shoulder disability. CONCLUSION OF LAW The criteria for service connection for a right shoulder disorder have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice included provisions for disability ratings and for the effective date of the claim. In a letter dated in November 2006, VA notified the Veteran of the information and evidence needed to substantiate and complete his underlying claims for service connection, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The letter also generally advised the Veteran to submit any additional information in support of his claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claim. Relevant in-service and post-service treatment reports are of record and the Veteran was afforded a VA examination. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA findings obtained in this case are adequate, as the diagnoses provided are predicated on a full reading of the VA medical records in the Veteran's claims file, history given by the Veteran, and thorough examination of the Veteran. A medical nexus opinion was not required in this case because the VA examination concluded there was no current disability of the right shoulder. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to right shoulder disorder has been met. 38 C.F.R. § 3.159(c)(4). The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service records, post-service VA and private treatment records, VA examinations, and the Veteran's statements. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). 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 C.F.R. § 3.303(d). 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). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). In rendering a decision on appeal the Board must also 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. 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"). Service Connection for Right Shoulder Disorder The Veteran contends that he suffers from a right shoulder disorder due to training in service. He further contends that he has suffered from continuous right shoulder pain since service. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran sustained a right shoulder injury in service and that right shoulder disorder symptoms were chronic in service. In a June 1989 service treatment record, the Veteran reported right shoulder pain. The service examiner diagnosed muscle strain and placed the Veteran on restricted duty for five days. In a February 2003 service periodic medical examination, the service examiner reported that the Veteran had right shoulder pain during exercise and prolonged standing. In a January 2004 service treatment record, the Veteran reported right shoulder and neck pain. The service examiner diagnosed right shoulder strain and prescribed physical therapy for the right shoulder. In a February 2004 service radiological report, the service examiner reported that the right shoulder was within normal limits and found that the acriomioclavicular joints (AC) were normal. In a May 2006 service treatment record, the Veteran reported a history of separation of the right shoulder. The service examiner diagnosed frozen right shoulder. The May 2006 service retirement clinical evaluation does not note any findings of a right shoulder disorder, finding as normal the "upper extremities." However, in the May 2006 separation examination "Report of Medical History," the Veteran reported a history of right shoulder pain and right shoulder dislocation. A June 2006 service treatment record reflected that the Veteran was receiving steroid injections for the right shoulder. The service examiner diagnosed right shoulder bursitis and right shoulder impingement that were both stable. The Board next finds that the weight of the evidence demonstrates that symptoms of a right shoulder disorder have not been continuous since service separation in October 2006, and that the Veteran's assertions of continuous post-service symptoms not to be credible. As indicated, the May 2006 service separation clinical examination did not reflect a diagnosis of a right shoulder disorder. Following service separation in October 2006, the evidence of record shows no complaints, diagnosis, or treatment for a right shoulder disorder. The absence of post-service complaints, findings, diagnosis, or treatment after service is one factor that tends to weigh against a finding of continuous right shoulder disorder symptoms after service separation. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006) (holding that the Board may weigh the absence of contemporaneous medical evidence as one factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). In the January 2007 VA general medical examination, the Veteran reported right shoulder pain that was exacerbated by exercise. The VA examiner reported right shoulder flexion of 180 degrees, without pain, and reported no pain to deep palpation in any aspect of the right shoulder. The VA examiner also reported no pain and no change of range of motion (ROM) on repetitive use. X-rays of the right shoulder were normal. The VA examiner diagnosed right shoulder instability, not found. With regard to the Veteran's assertions, including the January 2007 VA general medical examination report history, that right shoulder disorder began in service and that his right shoulder disorder symptoms have continued while in service and following service, the Board finds that, while the Veteran is competent to report the onset of his right shoulder disorder symptoms, his recent report of continuous right shoulder disorder symptoms since service is outweighed by the other lay and medical evidence of record, and is not credible. See Charles v. Principi, 16 Vet. App. 370 (2002). The Board finds that the Veteran's statements as to continuous right shoulder disorder symptoms after service are not credible because they are outweighed by other evidence of record that includes the clinical evaluation at the May 2006 discharge examination that reported normal "upper extremities," the January 2007 VA general medical examination that found normal right shoulder with full ROM, and a January 2007 VA X-ray that reported normal right shoulder. Finally, the Board notes that the post-discharge evidence of record does not contain any notation indicating a diagnosis of a right shoulder disability. In the January 2007 VA general medical examination, the VA examiner reported mild discomfort on right shoulder internal rotation, but otherwise found full ranges of motion, including no additional limitation of motion with repetitive use, and opinion of no functional limitation during reported flare-ups. The Veteran has reported right shoulder pain that is exacerbated by exercise; however, the report of such symptoms does not equate to a diagnosis of current right shoulder disability. Symptoms such as pain, by itself and without an underlying medical condition, do not constitute a disability for VA disability compensation purposes. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). In the January 2007 VA general medical examination, X-rays of the right shoulder were normal and the VA examiner diagnosed that right shoulder instability was not found. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer, 3 Vet. App. at 225. In this case, the record of evidence indicates that the Veteran incurred a chronic right shoulder disorder during service, but has not experienced continuous right shoulder disorder symptomatology since service, and does not currently have a right shoulder disability. For these reasons, service connection for a right shoulder disorder must be denied. As the preponderance of the evidence weighs against the Veteran's claim for service connection for a right shoulder disorder, the benefit of the doubt doctrine is not applicable, and the claim for service connection must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for right shoulder disorder is denied. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs