Citation Nr: 1123971 Decision Date: 06/23/11 Archive Date: 06/29/11 DOCKET NO. 02-05 956 ) DATE ) ) On appeal from the U.S. Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois THE ISSUE Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: Virginia A. Girard-Brady, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Thomas A. Pluta, Counsel INTRODUCTION The Veteran had active service from January 1953 to January 1956. This appeal to the Board of Veterans Appeals (Board) arises from a November 2001 rating action that, in pertinent part, denied service connection for a right shoulder disability. By decision of August 2002, the Board remanded this case to the RO for due process development. In May 2003, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge at the RO. By decision of November 2003, the Board, in pertinent part, denied service connection for a right shoulder disability. The Veteran appealed the denial to the U.S. Court of Appeals for Veterans Claims (Court). By April 2005 Order, the Court vacated the Board's November 2003 decision and remanded the matter to the Board for additional development and readjudication consistent therewith. By decisions of May 2006 and April 2008, the Board, in pertinent part, remanded the issue of service connection for a right shoulder disability to the RO for further development of the evidence and for due process development. In July 2010, the Vice-Chairman of the Board advanced this appeal on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claim for service connection for a right shoulder disability has, to the extent possible, been accomplished. 2. The competent, probative medical evidence establishes no nexus between the chronic right shoulder disability first diagnosed many years post service and the veteran's inservice nonspecific shoulder complaint. CONCLUSION OF LAW A chronic right shoulder disability was not shown present in service or for many years thereafter, and the competent evidence establishes no nexus between any such current disability and the veteran's military service or any incident thereof. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) (See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009) essentially includes, upon the submission of a substantially-complete application for benefits, an enhanced duty on the part of the VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, it defines the obligation of the VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Considering the record in light of the above criteria, the Board finds that all notification and development action needed to render a fair decision on the claim for service connection for a right shoulder disability on appeal has, to the extent possible, been accomplished. March 2001 pre-rating and August 2006 post-rating RO letters informed the Veteran and his attorney of the VA's responsibilities to notify and assist him in his claim, and what was needed to establish entitlement to service connection (evidence showing an injury or disease that began in or was made worse by his military service, or that there was an event in service that caused an injury or disease). Thereafter, he was afforded opportunities to respond. The Board thus finds that the Veteran has received sufficient notice of the information and evidence needed to support his claim, and has been provided ample opportunity to submit such information and evidence. Additionally, those RO letters provided notice that the VA would make reasonable efforts to help the Veteran get evidence necessary to support his claim, such as medical records (including private medical records), if he gave it enough information, and if needed, authorization to obtain them. Those letters further specified what records the VA was responsible for obtaining, to include Federal records, and the type of records that the VA would make reasonable efforts to get. The Board thus finds that those letters collectively satisfy the statutory and regulatory requirement that the VA notify a claimant what evidence, if any, will be obtained by him and what evidence will be retrieved by the VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In the decision of Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that proper VCAA notice should notify a veteran of: (1) the evidence that is needed to substantiate a claim; (2) the evidence, if any, to be obtained by the VA; and (3) the evidence, if any, to be provided by him. As indicated above, all 3 content of notice requirements have been met in this appeal. Pelegrini also held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided at the time that, or immediately after, the VA Secretary receives a complete or substantially complete application for VA-administered benefits. In that case, the Court determined that the VA had failed to demonstrate that a lack of such pre-adjudication notice was not prejudicial to the claimant. In the matter now before the Board, documents meeting the VCAA's notice requirements were furnished to the Veteran both before and after the November 2001 rating action on appeal. The Board thus finds that the delay in issuing the full 38 U.S.C.A. § 5103(a) notice was not prejudicial to the Veteran because it did not affect the essential fairness of the adjudication, in that his claim was fully developed and readjudicated after full notice was provided, as reflected in the October and December 2007 and June 2009 Supplemental Statements of the Case (SSOCs). See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006). As indicated above, the Veteran has been notified of what was needed to substantiate his claim, and afforded numerous opportunities to present information and/or evidence in support thereof. As a result of RO development and the Board remands, comprehensive documentation, identified below, has been associated with the claims folder and considered in connection with the veteran's appeal. Hence, the Board finds that any failure on the part of the VA in not completely fulfilling VCAA notice requirements prior to the RO's initial adjudication of the claim is harmless. See ATD Corp. v. Lydall, Inc., 159 F. 3d 534, 549 (Fed. Cir. 1998); Cf. 38 C.F.R. § 20.1102 (2005). In March 2006, during the pendency of this appeal, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all 5 elements of a service connection claim (veteran status, the existence of a disability, a connection between the veteran's service and that disability, the degree of disability, and the effective date pertaining thereto). In this case, the Board finds that the Veteran was furnished notice of the latter requirements in the August 2006 RO letter. Additionally, the Board finds that all necessary development on the claim currently under consideration has, to the extent possible, been accomplished. The RO, on its own initiative and pursuant to the Board remands and Court Order, has made reasonable and appropriate efforts to assist the appellant in obtaining all evidence necessary to substantiate his claim, to include obtaining all available service and post-service VA and private medical records through 2009. A copy of the July 1982 Social Security Administration decision awarding the Veteran disability benefits, together with medical records underlying that determination, and a transcript of the veteran's May 2003 Board hearing testimony have been associated with the claims folder and considered in adjudicating this claim. In this regard, the Board notes that some service medical records appear to be unavailable, presumably having been destroyed in a fire years ago at the National Personnel Records Center (NPRC). By letters of May 2002 and August 2006, the RO notified the Veteran of alternate sources of records and forms of evidence to support his claim. However, the RO's exhaustive attempts to search alternate and secondary military record sources were unsuccessful. In October 2006, the NPRC stated that no Surgeon General's Office records were available for U.S. Marine Corps personnel. The U.S. Marine Corps University Archive in December 2006, the National Archives and Records Administration (NARA) in April 2007, and the NARA Modern Military Records Branch in June 2007 all stated that they had no records pertaining to the Veteran. Significantly, the Veteran has not identified, nor does the record otherwise indicate, any existing, pertinent evidence, in addition to that noted above, that has not been obtained. In May 2001, the Veteran stated that he had no additional evidence to submit in connection with his claim. In January 2008, the veteran's attorney stated that she had no additional information to submit. In June 2009, the Veteran stated that he had no other information or evidence to submit in connection with his claim. The record also presents no basis for further development to create any additional evidence to be considered in connection with the matter currently under consideration. At the May 2003 Board hearing, the Veteran testified that he never had any physical examinations for employment. Under these circumstances, the Board finds that the Veteran is not prejudiced by appellate consideration of the claim on appeal at this juncture, without directing or accomplishing any additional notification and/or development action. II. Analysis Under the applicable criteria, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection also may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38 C.F.R. § 3.303(d). Where a veteran served continuously for 90 days or more during a period of war or during peacetime service after 31 December 1946 and arthritis becomes manifest to a degree of 10% within 1 year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of it during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. The Veteran contends that he injured his right shoulder in service and that his current disabilities are the result thereof. He asserts that another soldier dropped a heavy machinegun on his right shoulder from a height of 20 feet, badly bruising the shoulder and causing a suspected cracked collar bone. He gave testimony to that effect at the May 2003 Board hearing. The available service records show that the Veteran was seen for nonspecific shoulder trouble in October 1953, and right clavicle X-rays revealed no abnormality. The upper extremities were normal on January 1956 separation examination. The first objective demonstration of a chronic right shoulder disability was the degenerative/arthritic changes with a rotator cuff tear shown on magnetic resonance imaging (MRI) at the Parkside Magnetic Resonance Center in December 1997, nearly 42 years post service. However, there was no history relating that disability to military service or any incident thereof in the 1997 medical report or in numerous subsequent medical records through 2004. The Veteran underwent repairs of right shoulder rotator cuff tears at the Lutheran General Hospital in February and December 1998. January 2000 MRI at the Elmhurst Memorial Hospital revealed a complete tear of the posterior right shoulder distal supraspinatus tendon. In May 2000, the Veteran underwent a right shoulder acromioplasty and rotator cuff repair at Elmhurst. In August 2002, he underwent repair of the long head of the right biceps tendon at Elmhurst. October 2003 right shoulder MRI at Elmhurst revealed multiple tears with retraction of the rotator cuff tendon and displacement of the bicipital tendon out of the groove. In November 2003, the Veteran underwent right shoulder rotator cuff repair at the Hinsdale Surgical Center. In April 2004, he underwent a right shoulder hemiarthroplasty at the AHS Midwest Region Hinsdale Hospital. In September 2007, the veteran's right shoulder was examined by a physician's assistant (P.A.) at a VA medical facility, but the P. A. was unable to furnish an adequate medical opinion as to the relationship, if any, between the veteran's inservice nonspecific shoulder problem and his post-service chronic right shoulder disability. On May 2008 VA examination, a physician reviewed the veteran's claims folder including the service medical records and the post-service medical records showing bilateral shoulder disabilities, as well as the veteran's history of an inservice right shoulder injury, and after current examination including X-rays, the diagnosis was status post right hemiarthroplasty for rotator cuff arthropathy. The examiner commented that rotator cuff tears were uncommon in the 3rd decade of life except for the overhead athlete (such as a baseball pitcher), but that acute rotator cuff tears could be caused in this age group by a fall on an outstretched arm or by lifting heavy weight. The physician stated that the mechanism of inservice injury stated by the Veteran, a blow to the superior aspect of the shoulder area overlying the right clavicle from a 35-pound weight, could certainly cause a contusion or possibly clavicular fracture, but he opined that it would not cause a tear of the rotator cuff. The doctor further noted that the Veteran had had bilateral rotator cuff surgery, and that he developed symptomatic rotator cuff pathology on the right in the 1990s at approximately the age of 60, which was consistent with the usual age of onset as commonly seen in orthopedic medical practice. The physician opined that the mechanism of the veteran's inservice right shoulder injury was inconsistent with rotator cuff tear, and that his rotator cuff tear pathology was bilateral and developed many years (40, on the right) after the inservice injury. The examiner further commented that rotator cuff pathology was common in the general population, and that the veteran's service medical records documented normal upper extremities at the time of separation from service. On those facts, the physician opined that it was not likely that the veteran's right shoulder condition, status post hemiarthroplasty for rotator cuff arthropathy, had its onset in service or was caused by his inservice injury to the right "shoulder." In the absence of competent and persuasive (medical) evidence establishing a nexus between any current chronic right shoulder disability first manifested many years post service and the veteran's military service or any incident thereof, the Board finds no basis upon which to grant service connection therefor. The Board accords great probative value to the 2008 VA medical opinion, inasmuch as it was based on the examiner's thorough review of the veteran's claims folder containing his military, medical, and post-service history, and current orthopedic examination of the Veteran, and the Veteran has submitted no medical opinion to the contrary. In addition to the medical evidence, the Board has considered the veteran's assertions and testimony; however, such does not provide any basis for allowance of the claim. While the Veteran may believe that his current chronic right shoulder disability is related to his nonspecific inservice shoulder complaint, there is no medical support for such contention. The Board emphasizes that the appellant is competent to offer evidence as to facts within his personal knowledge, such as his own symptoms. However, medical questions of diagnosis and etiology are within the province of trained medical professionals. Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As a layman without the appropriate medical training or expertise, the appellant simply is not competent to render a persuasive opinion on medical matters such as the relationship between his inservice shoulder complaint and claimed injury, and his chronic post-service right shoulder disability. 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 layman is generally not capable of opining on matters requiring medical knowledge). Hence, his assertions in this regard have no probative value. Under these circumstances, the Board concludes that service connection for a right shoulder disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a right shoulder disability is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs