Citation Nr: 1127550 Decision Date: 07/22/11 Archive Date: 07/29/11 DOCKET NO. 09-13 772 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for residuals of a left shoulder injury. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from June 1972 to June 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, in which the RO denied service connection for a left shoulder disability. In July 2010, the Board remanded the claim to the RO, via the Appeals Management Center (AMC) in Washington, DC, for additional development. As will be further discussed below, the remand directives have been sufficiently complied with. See Dyment v. West, 13 Vet. App. 141 (1999). FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the matter on appeal has been accomplished. 2. While the Veteran was treated for a left shoulder contusion during service, the evidence does not show any ongoing follow-up treatment for a chronic left shoulder disability. 3. There is no competent evidence or opinion suggesting that a current left shoulder strain is related to his military service. CONCLUSION OF LAW The criteria for service connection for residuals of a left shoulder disability are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2010) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353- 23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, an August 2006 pre-rating letter provided notice to the Veteran regarding what information and evidence is needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the Veteran, and what information and evidence would be obtained by VA. The letter also specifically informed the Veteran to submit any evidence in his possession pertinent to the claim on appeal (consistent with Pelegrini and the version of 38 C.F.R. § 3.159 then in effect). In addition, the August 2006 letter provided the Veteran with information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations, consistent with Dingess/Hartman. Hence, this letter meets Pelegrini's and Dingess/Hartman's content of notice requirements, as well as the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter on appeal. In this case, the Veteran's service treatment records (STRs) were found to be unavailable for review. A January 2007 Memorandum details the RO's attempt to obtain these records. In an August 2006 letter, the Veteran was notified that his STRs were unavailable and he responded by provided copies of the STRs that were submitted with his original claim. In addition, the claims file consists of the Veteran's VA outpatient treatment records dated from November 2006 to April 2008; reports of VA examinations conducted in February 2007 and February 2009; and a June 2008 VA supplemental medical opinion. Also of record and considered in connection with the appeal are various written statements provided by the Veteran and by his representative, on his behalf. The Board also finds that no further RO action on this matter, prior to appellate consideration, is warranted. In this regard, in his March 2009 substantive appeal, the Veteran asserted that, in a February 2, 2008 rating decision, the RO granted service connection for a left shoulder disability and assigned a 10 percent rating effective June 9, 2006. As noted by the Board in its July 2010 remand, there was some evidence in VA's electronic tracking system suggesting that some action was taken on February 2, 2008, however, there was no such rating decision of record. The Board instructed the RO/AMC to send a letter to the Veteran requesting that he provide a copy of the February 2008 rating decision. A letter was sent on July 2010 and the Veteran responded later that month, indicating that he did not have a copy of the rating decision and that he did not have any additional evidence to support his claim. The Board also instructed the RO/AMC to obtain any temporary claims folder or separately maintained records which might exist, if any. The AMC requested that the RO search for any temporary claims folders, but none were found. Based on the foregoing, the Board finds that the RO/AMC has substantially complied with the Board's July 2010 remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with any of these claims. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter on appeal, at this juncture. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Laws 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"). 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). III. Legal Analysis Considering the evidence in light of the governing legal authority, the Board finds that the claim for service connection for residuals of a left shoulder injury must be denied. In this case, the Veteran asserts that he has a current left shoulder disability related to an injury he sustained during service while playing basketball. The Veteran's STRs reflect that the Veteran was treated in the emergency room the evening of October 12, 1972 for torn ligaments in the left shoulder. An October 13 clinic note indicates that he was to continue on analgesics and was given a temporary profile. On October 16, it was noted that he was still sore, that his sling was cut, and that he went to physical therapy. A physical therapy note dated that same day indicates that he was started on hot packs to the left shoulder and pendulum and range of motion exercises. An orthopedic clinic note dated that same day indicates that his shoulder was tender with soft tissue swelling over the distal clavicle to the suprascapular space and minimally of the acromioclavicular joint. It was also noted that elevation resulted in increased pain. An X-ray showed no fracture. The impression was a contusion. It was recommended that he continue with physical therapy and use a sling until comfortable. There are no follow-up records of treatment for the left shoulder during service. The report of a May 1975 discharge examination reflects that his upper extremities were normal. Post-service, the Veteran's VA treatment records dated from November 2006 to April 2008 do not show any complaint, treatment or diagnosis relating to a left shoulder disability. The report of a February 2007 VA joints examination reflects the Veteran's complaints of left shoulder pain and stiffness. He said that he injured his left shoulder playing basketball in service in October 1972. It was noted that post service the Veteran was employed doing flooring work that involved strenuous use of both the upper and lower extremities for several years. The diagnoses were "torn left shoulder ligament during active military duty in October 1972; resolved based on clinical objective evidence" and "residuals left shoulder strain most likely caused by a post service event based on clinical objective evidence." The examiner, a VA physician, indicated that she could not "resolve this issue without resorting to mere speculation." The examiner noted that the rationale was that although the claims file documented torn left shoulder ligaments in October 1972, there was no objective evidence that the left shoulder injury was the cause of his current left shoulder strain, which was documented 35 years after the initial left shoulder injury. Furthermore, the examiner noted that the Veteran had been employed for several years in manual labor with flooring; that there was no objective evidence that the Veteran sustained a chronic left shoulder condition during active service; and that there was no objective data to support continued evaluation and treatment for the in-service left shoulder injury following release from active duty. The examiner noted her opinion was based on clinical examination, medical record review, medical literature review, and clinical experience. In his June 2007 notice of disagreement (NOD), the Veteran noted that he did not engage in hard manual labor installing floors, but that he just cut carpet so that it could be installed. He said that cutting carpet was far less strenuous on his shoulder than installing carpet would be and that for the past 24 years, he had been employed in an office environment with the Department of Children and Families. He said he did not make any complaints at the time of discharge because the condition was not so severe as to require medication or to warrant complaint of severe pain. In June 2008, the February 2007 VA examiner provided a supplemental medical opinion. The examiner reviewed the Veteran's June 2007 NOD, noting that the Veteran said that said that his shoulder had hurt at the discharge examination, but that he did not report it. The examiner opined that it would be "with resort to mere speculation to opine if veteran's current residuals of his left shoulder injury is [sic] related to the documented torn left shoulder ligament in service, with the need for physical therapy." The examiner noted that she took into account the Veteran's subjective June 2007 statement, but that there was still no objective data to support his claim. The report of a February 2009 VA examination reflects the Veteran's history as noted above. The Veteran said that he spent a week in a sling and was on temporary profile for two weeks following the in-service injury. He said that the condition progressively worsened. On physical examination, there was objective evidence of pain with active range of motion. The diagnosis was left shoulder strain. The examiner, a different VA physician, opined "As per previous opinion at C&P exam 2/07, I cannot resolve this issue without resorting to mere speculation." The rationale given was that there was no evidence that the Veteran was seen for follow-up treatment of his left shoulder during service and that his separation physical examination was normal. The examiner also noted that there were no records of left shoulder complaints or treatment within 1 year of service and that it had been 36 years since the service injury. The examiner also noted that the Veteran's history of intercurrent injury was unknown. Finally, the examiner stated that she "did not find compelling evidence that veterans current left shoulder strain is due to injury in service" and did not "find compelling evidence to disagree with the opinion 2/07." As regards to the Veteran's current diagnosis, the earliest objective medical evidence of a left shoulder strain is the February 2007 VA examination - almost 35 years after the Veteran's in-service injury. 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). In this case, the Veteran asserts that he has had chronic left shoulder problems since his injury in service. The Board points out that the Veteran, as a layperson, is competent to report on matters observed or within his or her personal knowledge. 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 Board does not find the Veteran's statements to be credible. Although the medical evidence clearly documents that the Veteran had a left shoulder injury in October 1972, his STRs do not show that he had follow-up or ongoing treatment for a chronic left shoulder disability. Furthermore, on physical examination prior to discharge in May 1975, it was noted that his upper extremities were normal. Hence, the medical evidence is contrary to the Veteran's later assertions, that he has had a chronic left shoulder disability since the in-service injury. The Board points out that the contemporaneous medical records are more persuasive than the Veterans later assertions made in the course of filing a claim for benefits. Furthermore, the record does not contain any complaint of left shoulder problems until the Veteran filed his claim in June 2006 and he was not diagnosed with a left shoulder sprain until his VA examination in February 2007. Thus, continuity of symptomatology has not been established by either the clinical record or the Veteran's own statements. As regards the etiology of the Veteran's left shoulder disability, the Board points out the only competent medical opinions of record indicate that it would require resorting to mere speculation to provide an opinion as to whether the Veteran's current left shoulder disability is at least as likely as not related to service. The Court, in Jones v. Shinseki, 23 Vet. App. 382 (2010), found that when a medical examiner states no conclusion as to etiology or diagnosis can be reached without resorting to speculation, it must be clear that the examiner has considered "all procurable and assembled data," by obtaining all tests and records that might reasonably illuminate the medical analysis. Id. at 390. Furthermore, the Court stated that the phrase "without resort to mere speculation" should reflect the limitation of knowledge in the medical community at large and not of a particular examiner. Id. In this case, both the February 2007 and February 2009 VA examiners are VA physicians. In fact, the February 2007 VA examiner is the current Medical Director of the C&P unit at the Gainesville VA Medical Center. Hence, the Board finds no reason to find that either examiner has limited knowledge or a lack of expertise in this particular matter. Furthermore, both examiners performed clinical evaluations of the Veteran, and considered the medical evidence of record - in particular, the Veteran's STRs - along with the Veteran's own self-reported history. The February 2007 examiner even revisited the issue after the Veteran submitted a statement indicating that his prior work experience did not really involve heavy manual labor as was noted previously. It is clear that both examiners considered all procurable and assembled data and the Veteran, himself, has indicated that he has no additional evidence to submit, or which needs to be obtained, relating to his left shoulder disability. The Board also points out that although each examiner indicated it would be resorting to mere speculation to provide an opinion, they later stated that there was no compelling evidence that the Veteran's current left shoulder disability was due to the in-service injury. The Board is aware that the applicable legal standard is not whether there is "compelling" evidence, but simply whether the evidence is evenly balanced with respect to whether or not a disorder was incurred in service. Although neither examiner gave definitive opinions, these statements tend to weigh against the claim for service connection. Although the Board has considered the written statements of the Veteran and his representative, to the extent that any such lay statements are being offered to answer the question of whether the Veteran's current left 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 and his representative are laypersons without the appropriate medical training or expertise, they are 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 left shoulder disability have no probative value. For the foregoing reasons, the claim for service connection for residuals of a left shoulder injury must be denied. In arriving at the decision to deny the claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, in the absence of competent and persuasive evidence to support the claim, that doctrine is not applicable. 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 residuals of a left shoulder injury is denied. ____________________________________________ MICHAEL MARTIN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs