Citation Nr: 1126019 Decision Date: 07/11/11 Archive Date: 07/19/11 DOCKET NO. 06-14 345 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to service connection for right shoulder disability. 2. Entitlement to service connection for left knee disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The Veteran had active duty service from February 1959 to February 1961 and from December 1961 to August 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). This matter was remanded in April 2010 for further development. Although the Veteran's notice of disagreement initiated an appeal as to several other issues which were denied in the October 2004 rating decision, his substantive appeal expressly limited his appeal to the two issues listed on the first page of this decision. In a May 2011 statement, the Veteran's representative appears to advance a claim of clear and unmistakable error in a prior rating decision which denied service connection for back disability. This matter is hereby referred to the RO for clarification and any necessary action. The issue of entitlement to service connection for left knee disability is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Chronic right shoulder disability was not manifested during the Veteran's active duty service or for many years thereafter, nor is the Veteran's current right shoulder disability otherwise related to such service. CONCLUSION OF LAW Right shoulder disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. § 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (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 and 3.326(a) (2010). Duty to Notify Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by a letter dated in July 2004. The notification substantially complied with the requirements of 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. The RO provided the appellant with notice in March 2006, subsequent to the initial adjudication. The 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. While the March 2006 notice was not provided prior to the initial adjudication, the claimant has had the opportunity to submit additional argument and evidence, and to meaningfully participate in the adjudication process. The claim was subsequently readjudicated in February 2008 and February 2011 supplemental statements of the case, following the provision of notice in March 2006. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. See Shinseki v. Sanders, 129 S.Ct. 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). Duty to Assist VA has obtained service, private and VA treatment records; assisted the Veteran in obtaining evidence; and afforded the Veteran a VA examination in July 2010. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran and his representative have not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the right shoulder claim at this time. Laws and Regulations Applicable law provides that service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Additionally, for veteran's who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. 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). The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 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). Analysis One of the issues before the Board involves a claim of entitlement to service connection for right shoulder disability. In a statement received in April 2006, the Veteran stated that he was unable to salute officers in service since his arm was in a sling and was unable to use his hand. After being given an injection for his shoulder, he was able to raise his arm to chest level while in service. A January 1960 service treatment record shows that there was mild tenderness over the Veteran's right clavicle; and a January 1960 x-ray shows no evidence of fracture. A January 1961 separation examination for his first period of active service shows that clinical evaluation of the upper extremities was normal and that there was no indication of right arm disability. A March 1962 service treatment record shows that the Veteran twisted his arm swimming. The diagnosis was possible torn muscle. A March 1962 x-ray shows that the Veteran complained of painful motion of the shoulder, that an examination showed tenderness over bicep tendons and that separation of coracoid process was ruled out. On separation examination in March 1962, clinical evaluation of the Veteran's upper extremity was normal, and there was no indication of right arm disability. While the Veteran checked the appropriate boxes in his contemporaneous medical history to indicate that he had a past/current history of other disorders, the Veteran checked appropriate box to deny painful or "trick" shoulder. A July 2000 orthopedic consultation shows that the Veteran was seen by Paul C. Liu, M.D., who noted that the Veteran complained of a one-year history of increasing pain in the right shoulder. The Veteran reported having a "partial tear" of the rotator cuff and was not able to compete as an Olympic wrestler in the military due to his injuries. It was noted that more than five years prior, he had a magnetic resonance imaging (MRI) scan that Dr. Liu believes was when the Veteran found out that he had the partial tear. It was additionally noted that in 1970, the Veteran started lifting weights and then a year ago began to feel pain after starting to work out again. The impression was right shoulder rule out rotator cuff tear. Dr. Liu recommended x-rays and MRI scan of the Veteran's shoulder. The Veteran was seen again by Dr. Liu in August 2000. Dr. Liu noted that the Veteran had pain since the 1960s but since falling over a month ago, he has had a real aggravation of the right shoulder pain. Dr. Liu found that the MRI scan done in July 2000 showed a moderate sized tear of the rotator cuff that looked chronic in nature. He also found significant degenerative changes of the tendon itself. The impression was large rotator cuff tear of the right shoulder. When the Veteran was afforded a VA examination in July 2010, the VA examiner diagnosed degenerative joint disease (DJD) of the right acromioclavicular (AC) joint, and history of right shoulder rotator cuff ear with a possible retear at supraspinatus tendon insertion with subchondral cyst at humeral head. After interviewing and examining the Veteran, and after reviewing the Veteran's claims file, the VA examiner opined that the Veteran's current right shoulder disability is less likely as not causally related to his service. The VA examiner explained that service treatment records showed tenderness over the biceps tendon with negative right shoulder radiographs; that the separation examination in 1962 did not show any current shoulder complaints; and that the Veteran had a history of reinjuring his right shoulder after his time in service as noted in records from Kaiser Permanente. The Board acknowledges the May 2011 statement from the Veteran's representative, who asserted that the VA examiner did not fully comprehend the limitation of x-ray technology during the Veteran's service and that it was only in 2002 that the ability to image cartilage by x-ray developed. He further questioned the propriety of relying on x-rays to detect a rotator cuff tear. The Board has considered these contentions, but the service treatment records otherwise argue against a finding that there was a rotor cuff tear during service or that the right shoulder symptoms noted during service are related to his current right shoulder disability. Review of the service treatment records show that steps were taken to determine the nature of the right shoulder complaints. The testing included clinical examination as well as x-ray studies. None of these diagnostic procedures detected a rotor cuff tear. Moreover, to the extent that the Veteran has informed medical personnel that he suffered right shoulder symptoms ever since the in-service episodes, the lack of mention of right shoulder complaints in subsequent service treatment records is inconsistent with the Veteran's current assertions. Significantly, the Veteran denied any shoulder problems on discharge examination in June 1962, although he did report other unrelated problems. The Board also notes that physical examination was conducted in connection with the Veteran's discharge for back problems, but the report does not mention any other medical problems. The Board finds that the credibility of the Veteran's assertions regarding continuing problems during service and for years thereafter has been diminished. The record does include a June 2006 letter from I.O, M.D. of the VA. Dr. O stated that the Veteran is her patient and that the Veteran has a history of DJD involving the right acromioclavicular joint and rotator cuff injury involving the right shoulder joint. She further stated that the Veteran had sustained injuries to the right shoulder while serving in the military many years ago. However, as discussed above, the credibility of the Veteran's account of ongoing right shoulder symptoms is suspect. The opinion of Dr. O is therefore based to some degree on history furnished by the Veteran which is not otherwise supported by the evidence of record. The VA examiner's July 2010 medical opinion was based both on the testing and interviewing the Veteran, and on a review of the Veteran's claims file. In reviewing the Veteran's claims file, the VA examiner was made aware of and was able to address the reinjuries that occurred post service. It is unclear to the Board whether Dr. O had been told about the reinjuries given that Dr. O did not mention it. Among the factors for assessing the probative value of a medical opinion are the examiner's access to the claims file, and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). For the reasons set forth above, the Board finds that the opinion rendered in the July 2010 VA examination report is clearly more probative than Dr. O's opinion. The Board acknowledges that an August 2000 private treatment record from Dr. Liu shows the Veteran reporting having pain since the 1960s. Again, the Board finds that the Veteran's 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 symptoms of right shoulder disability since active service is inconsistent with the other lay and medical evidence of record. While the Veteran is competent to report symptoms of right shoulder disability, when given the opportunity in a June 1962 report of medical history, he denied a past and current history of painful or "trick" shoulder, but confirmed a past/current history of other disorders. Moreover, while he did check the appropriate boxes to indicate that he had swollen or painful joints, and bone, joint or other deformity, the physician's summary only noted: "Spondylolisthesis. Remaining items of no clinical significance. No other serious illness or injury." Further, the service separation examination report reflects that the Veteran was examined and his upper extremities were found to be clinically normal. The evidence contemporaneous to service suggests that neither medical personnel nor the Veteran himself were of the opinion that there was a right shoulder disability prior to exiting service. It is reasonable to expect that if the Veteran had right shoulder disability pain since the 1960s, he would have reported such to military medical personnel (as he had with spondylisthesis) during his exit examination. After all, the express purpose of the separation examination and form eliciting history from the Veteran was to document any ongoing service-related problems. Overall, the Veteran's current assertions are inconsistent with what he reported, or failed to report, at the time of his separation examination. The Veteran's denial of shoulder symptoms at the time of service separation is more contemporaneous to service and is of more probative value than the more recent assertions 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). While not determinative by itself, it is also significant that there is no evidence of right shoulder disability for approximately 38 years after service. Even when considering that the Veteran underwent an MRI 5 years prior to his July 2000 visit to Dr. Liu, this is still over 30 years after service. This lengthy period without complaint or treatment after service also suggests that there has not been a continuity of symptomatology. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Consequently, the one year presumption of in-service incurrence for arthritis is not for application. 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 his previous 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 is against a finding of continuity of symptoms since service separation. After thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination in this case. 38 U.S.C.A. § 5107(b). The weight of the evidence is against the Veteran's claim. ORDER Entitlement to service connection for right shoulder disability is not warranted. The appeal is denied to this extent. REMAND In reviewing the RO's February 2011 supplemental statement of the case, the Board notes that under the discussion of the left knee it is stated that separation examination in 1962 did not note and knee complaints. However, the report of examination does show that the Veteran reported that he had, or had had, a trick or locked knee. Moreover, while the Veteran was afforded a VA examination in July 2010, the opinion provided is arguably inadequate. The VA examiner did not provide a rationale to include discussion of the significance of the in-service symptoms and the Veteran's report of a history of knee problems at discharge. Instead, it appears that the examiner only relied on x-rays taken of the knees during service noted no abnormalities. The right shoulder opinion, as noted earlier, did address in-service complaints and findings in addition to x-ray studies. Under the circumstances, the Board believes additional medical development is necessary before it may properly undertake appellate review of the left knee issue. Accordingly, the case is REMANDED for the following actions: 1. The Veteran should also be afforded a VA examination of the left knee. It is imperative that the claims file be made available to the examiner for review in connection with the examination. Any medically indicated special tests should be accomplished. After reviewing the claims file and examining the Veteran, the examiner should respond to the following: Is it at least as likely as not (a 50% or higher degree of probability) that the current left knee disability is causally related to service? The examiner should provide a rationale to include discussion of the significance of the documented in-service symptoms and current disability. 2. After completion of the above and any additional development which the RO may deem necessary, the RO should then review the expanded record and readjudicate the issue of entitlement to service connection for left knee disability. The RO should issue an appropriate supplemental statement of the case, and give the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs