Citation Nr: 1127753 Decision Date: 07/25/11 Archive Date: 08/02/11 DOCKET NO. 06-03 568A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection for a left shoulder disability, claimed as residuals of a rotator cuff tear. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Armstrong, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1969 to May 1973 and from November 1990 to June 1991. He also had a period of active duty for training (ACDUTRA) from April 14, 2001 to May 4, 2001. These matters are before the Board of Veterans' Appeals (Board) on appeal from a January 2005 rating decision of the Albuquerque, New Mexico Department of Veterans Affairs (VA) Regional Office (RO). In February 2009 and March 2010 the Board remanded the case for additional notice and development. FINDING OF FACT It is not shown that the Veteran now has, or at any time during the pendency of this claim/appeal has had a chronic left shoulder disability. CONCLUSION OF LAW Service connection for a disability claimed as residuals of a left rotator cuff tear is not warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to this claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA 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/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. A July 2004 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing. A March 2009 letter informed the Veteran of the evidence necessary to substantiate a claim based on ACDUTRA service and of disability rating and effective date criteria. An October 2009 supplemental statement of the case (SSOC) readjudicated the matter (curing any notice timing defect). See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Veteran has had ample opportunity to respond/supplement the record and has not alleged that notice in this case was less than adequate. The Board finds that there has been substantial compliance with its March 2010 remand instructions as the Veteran's period of ACDUTRA in Korea from April 14, 2001 to May 4, 2001 was confirmed, private treatment records were secured, and he was afforded an adequate VA examination. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. The Board notes that on August 2010 VA examination a more sophisticated diagnostic study (MRI) was ordered, but could not be completed, as the Veteran failed to report for the study. The examination report is otherwise adequate for rating purposes; the examiner considered the evidence of record and the reported history of the Veteran, conducted a thorough examination of the Veteran, noting all findings necessary for a proper determination in the matter, and explained the rationale for the opinion offered. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any pertinent evidence that remains outstanding. VA's duty to assist is met. B. Legal Criteria, Factual Background, and Analysis Service connection may be established for disability due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Continuity of symptoms is required where a condition in service is noted but is not, in fact, chronic or where a diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, there must be medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). The term "active military, naval, or air service" includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of INACDUTRA during which the individual concerned was disabled from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(21), (24); see also 38 C.F.R. § 3.6. Specifically with respect to Reserve members, diseases or injuries incurred or aggravated while performing active duty for training (ACDUTRA) are eligible for service connection. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. The Veteran's STRs are silent for complaints, findings, treatment, or diagnosis relating to the left shoulder. A December 2001 private outpatient treatment record notes that the Veteran reported that in April 2001 he was playing basketball while on active duty and noticed increased pain in the shoulders afterward, with persistent pain in the shoulders since that time and that he was unable to do push-ups secondary to pain in his shoulders. The impression was bilateral rotator cuff tendinosis with probable partial rotator cuff tear of the left shoulder. An associated letter from the provider notes that the injury the Veteran suffered in April was an overuse type injury. On November 2002 periodic Reserve examination the Veteran's upper extremities were noted to be normal on clinical evaluation. He indicated he had a painful right shoulder ("right shoulder impairment" is service-connected"). The examiner noted chronic right shoulder pain with the Veteran's report of a partially torn rotator cuff with tingling and numbness in the right hand. A July 2003 statement by D.E., a former fellow serviceman, notes that around the 16th of April 2001 the Veteran complained to him of a left shoulder injury as a result of push-ups and pull-ups. He noted that due to their mission and location, the Veteran did not see a medical professional. The Veteran filed the instant service connection claim in June 2004; he related that he had reported his April 2001 left shoulder injury on his "November 2002 Army physical." In his February 2006 VA Form (substantive appeal) the Veteran advised that he did not seek any treatment or evaluation for left shoulder disability other than the "late 2001" examination by Dr. A.F.R.. He noted that military records are silent for a left shoulder injury because he did not see a military medical care provider at the time. On August 2010 VA examination the Veteran reported that he had intermittent left shoulder pain that had become progressively worse since onset. The examiner noted that upon review of the claims file it was apparent that the Veteran injured his left shoulder during a summer camp in Korea in 2001. On current examination he denied any left shoulder pain, and left shoulder examination was completely negative with normal range of motion. He added that the evaluation was incomplete as the Veteran failed to report for a scheduled MRI. The diagnosis was "left shoulder condition not found." The Veteran claims that he has a left shoulder disability as a residual of an injury on ACDUTRA in Korea in April/May 2001. The threshold question here, as in any claim seeking service connection is whether the Veteran now has, or at any time since the filing of his claim of service connection has had, the disability he seeks to have service-connected, i.e., a left shoulder disability claimed as residuals of a rotator cuff tear. (See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim). Notably; pain alone (absent underlying pathology or associated competent diagnosis) does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). While there is no contemporaneous medical evidence of such (the Veteran reported he did not seek treatment at the time), and later accounts have been inconsistent (e.g., in the course of obtaining a supporting statement with respect to various claims the Veteran advised his private physician that he injured his shoulder playing basketball while his "buddy" lay statement indicates that the injury occurred doing push-ups and pull-ups during PT; and while the "buddy" statement indicates that the mission and location precluded medical attention, it is noteworthy that the event described apparently occurred on a military base in Korea which, if it indeed had a basketball court, would be highly unlikely to not have a medical facility, at least an aid station), it may reasonably be conceded for purposes of this appeal that that the Veteran indeed sustained some sort of left shoulder injury in service. There is, however, no competent evidence showing that at any time since he filed his claim, in June 2004, the Veteran was shown to have a chronic left shoulder disability. In this regard, the Board notes that it is not in dispute that a chronic left shoulder disability was not noted during the period of ACDUTRA in question (he acknowledges he did not seek medical attention for his left shoulder on ACDUTRA, or at any time other than in December 2001, when he was seeking a supporting statement in connection with his claim for compensation). The December 2001 evaluation report does not establish the presence of a left shoulder disability during the pendency of the claim, as it preceded the filing of the instant claim by some 2 1/2 years. The Veteran asserts that he reported his left shoulder injury on ACDUTRA on November 2002 Reserve periodical examination. In this regard it is noteworthy that a review of the examination and history reports notes that the Veteran reported a painful right shoulder (which is service-connected, and not at issue herein). Furthermore, on clinical evaluation at the time the Veteran's upper extremities were normal. Regardless, that examination likewise preceded the filing of the instant claim by approximately 1 1/2 years, and would not have shown the claimed disability during the filing of his claim. As the Veteran has indicated he did not seek any other medical attention for his left shoulder, the only competent (medical) evidence of record addressing whether or not the Veteran has had a left shoulder disability during the pendency of this claim is the report of the August 2010 VA examination when the examiner reviewed the record, noted the Veteran's complaints, conducted a thorough physical examination, and opined that a left shoulder disability was not found. [Notably, the examiner proposed/scheduled a sophisticated diagnostic study (MRI) that would more conclusively determine whether the Veteran has any left shoulder pathology; however, the Veteran declined to participate, i.e., did not report for the MRI. The duty to assist is "not a one-way street". See Wood v. Derwinski, 1 Vet. App. 190 (1991). Where a Veteran's co-operation is necessary to develop evidence pertinent to his claim, he has a duty to co-operate.] The Board find's the August 2010 VA examiner's opinion highly probative in the matter of whether the Veteran has a chronic left shoulder disability. Because there is no competent evidence to the contrary, the Board finds it persuasive. The Board notes the Veteran's reports of left shoulder pain, and acknowledges that he is competent to observe that he has such symptom. [It is noteworthy here that when the Veteran was examined by VA in August 2010 he indicated that the pain was intermittent, and denied having any at the time.] However, as was noted above, pain of itself, without underlying pathology, is not a compensable disability. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Whether or not there is underlying pathology to account for the Veteran's pain is a medical question that is beyond lay observation, but requires medical expertise (e.g., it is something like a fracture that a layperson is capable of observing). See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (2007). The Veteran has presented no medical evidence to support that he has had a left shoulder disability at any time since June 2004. The preponderance of the evidence is against a finding that at any time since he filed his claim of service connection for such disability the Veteran has been shown to have any left shoulder disability (claimed to be a residual of a rotator cuff tear). Consequently, he has not satisfied the threshold requirement necessary to substantiate a claim of service connection for such disability, and has not presented a valid claim of service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Hence, the claim must be denied. ORDER Service connection for a left shoulder disability, claimed as residuals of a left rotator cuff tear, is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs