Citation Nr: 1127116 Decision Date: 07/20/11 Archive Date: 07/29/11 DOCKET NO. 03-10 565 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUE Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Andrew Dubinsky, Associate Counsel INTRODUCTION The Veteran had active service from December 1953 to December 1956. This matter comes before the Board of Veterans' Appeals (Board) from a September 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. The Board notes that the Veteran's claim on appeal was previously characterized as a claim to reopen a previously denied claim for entitlement to service connection for a right shoulder disability. However, in December 2009, the Board reopened and remanded the claim on the merits. As the claim has been reopened, the issue is restated on the title page of this decision. FINDING OF FACT The competent evidence of record does not show that the Veteran's right shoulder disability is related to an injury incurred during his period of active military service. CONCLUSION OF LAW The Veteran's right shoulder disability was not incurred in or aggravated by his period of active military service, nor may it be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A (West 2002); C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Previous Board Remand In December 2009, the Board remanded the case to the RO via the Appeals Management Center (AMC) for further development and readjudication of the Veteran's claims. Specifically, the Board ordered the AMC to obtain the Veteran's identified private medical records and schedule the Veteran for a VA examination in order to determine the etiology of his right shoulder disability. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). When remand orders are not complied with, the Board must ensure compliance. However, only substantial compliance, not strict compliance, is necessary. D'Aries v. Peake, 22 Vet. App. 97 (2008). VA obtained the private treatment records identified by the Veteran and then afforded the Veteran with an adequate medical examination in January 2010. Based on the foregoing, the Board finds that the AMC substantially complied with the December 2009 remand. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2010). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2010); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. The Board notes that the Secretary eliminated the element that requires the claimant to provide any evidence in his or her possession that pertains to the claim during the course of this appeal. See 73 Fed. Reg. 23353 (final rule revising 38 C.F.R. § 3.159(b) to rescind fourth element notice as required under Pelegrini II, effective May 30, 2008). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); but see Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006) (when VCAA notice follows the initial unfavorable AOJ decision, remand and subsequent RO actions may "essentially cure [] the error in the timing of notice"). VCAA notice should also apprise the claimant of the criteria for assigning disability ratings and for award of an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO/AMC sent the Veteran VCAA notice letters in October 2005, January 2007, and August 2007 describing what the evidence must show to establish entitlement to service connection for his claimed disorder and described the types of evidence that the Veteran should submit in support of his claim. The RO/AMC also explained what evidence VA would obtain and make reasonable efforts to obtain on the Veteran's behalf in support of the claim. The VCAA notice letters also addressed the elements of degree of disability and effective date. The Board further notes that the Veteran was provided with a copy of the September 2001 and May 2002 rating decisions; the April 2003 statement of the case (SOC); the April 2003, September 2004, March 2005, March 2006, May 2008, January 2009, and April 2011 supplemental statements of the case (SSOC); and the Board's September 2005, December 2006, and December 2009 decisions and remands, which cumulatively included a discussion of the facts of the claim, notification of the basis of the decision, a description of the pertinent laws and regulations, and a summary of the evidence considered to reach the decision. To fulfill its statutory duty to assist, the RO/AMC obtained the Veteran's VA treatment records and private treatment and associated the Veteran's service treatment records and personnel records with the claims file. The AMC also afforded the Veteran with a compensation and pension examination in January 2010. To that end, 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 examination obtained in this case was more than adequate, as it was predicated on a full reading of the private and VA medical records in the Veteran's claims file. The examination included the Veteran's subjective complaints about his disability and the objective findings needed to rate the disability. Legal Criteria Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2010). As a general matter, service connection for a disability on the basis of the merits of such claim requires (1) the existence of a current disability, (2) the existence of the disease or injury in service, and (3) a relationship or nexus between the current disability and any injury or disease during service. Cuevas v. Principi, 3 Vet. App. 542 (1992). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection. 38 C.F.R. § 3.303(b) (2010). 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) (2010). Generally, where the determinative issue involves a medical diagnosis or causation, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993). This burden typically cannot be met by lay testimony because lay persons are not competent to offer medical opinions. Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992). However, lay persons can provide an eye-witness account of a veteran's visible symptoms. See, e.g., Caldwell v. Derwinski, 1 Vet. App. 466, 469 (1991) (competent lay evidence concerning manifestations of disease may form the basis for an award of service connection where a claimant develops a chronic disease within a presumptive period but has no in-service diagnosis of such disease). 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 (Fed. Cir. 2007). Also, 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. Barr v. Nicholson, 21 Vet. App. 303 (2007). It should also be noted that certain chronic diseases, including arthritis, may be presumed to have been incurred in or aggravated by active military service when manifested to a compensable level within a year of separating from qualifying military service. 38 C.F.R. §§ 3.307, 3.309 (2010). Analysis The Veteran claims that he was the victim of a "blanket party" during his active military service when he was beaten and thrown down a flight of stairs by other Marines for speaking out about some safety issues. He further claims that he was treated at the United States Naval Hospital in Yokosuka, Japan, after the incident. The Veteran stated that a colonel threatened him and insisted that he tell doctors at that hospital that he injured himself by stepping in a ditch. At the outset, the Board observes that the Veteran's personnel records show he was transferred to Yokosuka Hospital in September 1956 and remained there until November 1956. Furthermore, the Veteran's service treatment records reveal that he was treated at that hospital after he twisted his ankle in a "drainage ditch." The Veteran also submitted a buddy statement from his brother, who stated that he visited the Veteran at Yokosuka Hospital. However, none of the service treatment records from the hospital mention a right shoulder injury. The Veteran's brother did not mention a shoulder injury either, and the Veteran's separation report of medical examination indicates that his upper extremities were clinically normal at the time of his discharge. The first evidence of a shoulder disability after discharge is a September 1973 compensation and pension examination report. The Veteran again reported that he tripped in a drainage ditch in 1956 and was treated at Yokosuka Naval Hospital with a cast for three months before discussing his ankle disability. The Veteran's stated history in the examination report did not mention any shoulder injury. Nevertheless, the examiner found some tenderness at the subacromial region of the right shoulder with no limitation of motion but did not discuss any previous shoulder injuries the Veteran may have incurred. The Veteran then received treatment for his right shoulder for many years, including a rotator cuff surgery and a total arthroplasty. During this time, the Veteran had been diagnosed with arthritis, an impingement, a dislocation, and both new and old fractures. The Board acknowledges that the Veteran told a nurse in February 1994, some 38 years after service, that he injured his ankle when he fell in a ditch. He did not mention his shoulder at that time. Thus, the Board accepts the Veteran's testimony that he was treated at Yokosuka Hospital in service. However, even if the Board finds that he was the victim of a "blanket party," the Board finds that there is still no evidence that the Veteran injured his right shoulder in service. On the contrary, the Veteran's service treatment records, including records from the Yokosuka Naval Hospital and his separation report of medical examination, indicate that he did not injure his right shoulder in service and that he did not have a right shoulder disability or symptomatology of a right shoulder disability when he was discharged from active military service. Still, VA afforded the Veteran with a compensation and pension examination in January 2010 to determine whether his right shoulder disability is etiologically related to his period of active military service. The examiner reviewed the Veteran's medical records and examined the Veteran. He was unable to find evidence of an injury sustained during military service, specifically citing the negative findings in the Veteran's discharge examination and post-service compensation and pension examination report. Although it was clear to the examiner that the Veteran had an injury to his right shoulder that significantly contributed to the development of degenerative joint disease and the need for joint replacement, the inciting cause for the development of the shoulder fracture and separation was not documented to have occurred in military service. The examiner diagnosed the Veteran with a right shoulder fracture and separation but opined that it was more likely than not that this disability was not related to the Veteran's military service. He then reiterated that there was no definitive data to support the contention that the "initial insult" occurred in military service to support his conclusion. Thus, the Board has considered the competent and credible evidence of record. In so doing, the Board has afforded the most probative value to the January 2010 compensation and pension examiner's opinion, which is the only competent medical opinion of record. Therefore, the Board finds that the evidence of record does not satisfy all three elements required for the Board to grant the Veteran service connection because there is no evidence of an injury in service or a relationship or nexus between the Veteran's current disability and his period of active military service. Consequently, the Board further finds that the preponderance of the evidence weighs against his claim of entitlement to service connection for a right shoulder disability. In reaching this conclusion, the Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the claims and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a right shoulder disability is denied. ____________________________________________ John E. Ormond, Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs