Citation Nr: 1127936 Decision Date: 07/26/11 Archive Date: 08/02/11 DOCKET NO. 08-16 347A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to service connection, to include on a secondary basis, for left shoulder disability, claimed as bursitis. ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from July 1971 to July 1992. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Albuquerque, New Mexico. In January 2011, the Board remanded the claim for additional development. FINDING OF FACT The Veteran does not have a left shoulder disability that was caused or aggravated by his active military service, or by a service-connected disability. CONCLUSION OF LAW A left shoulder disability was not caused or aggravated by service, or by a service-connected disability. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2010); Allen v. Brown, 7 Vet. App. 439 (1995). REASONS AND BASES FOR FINDING AND CONCLUSION I. Service Connection The Veteran contends that he has a left shoulder disability as the result of his service, or, in the alternative, that was caused or aggravated by his service-connected fractured right clavicle disability. 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. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be granted for arthritis, when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2010). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Additionally, when aggravation of a Veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). In July 2006, the Veteran filed his claim. VA amended its regulation pertaining to secondary service connection, effective from October 10, 2006. See 71 Fed. Reg. 52,744 (2006) (codified at 38 C.F.R. § 3.310). The new regulation appears to place additional evidentiary burdens on claimants seeking service connection based on aggravation; specifically, in terms of establishing a baseline level of disability for the non-service-connected condition prior to the aggravation. Because the new law appears more restrictive than the old, and because the appellant's claim was pending when the new provisions were promulgated, the Board will consider this appeal under the law in effect prior to October 10, 2006. See, e.g., Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (new regulations cannot be applied to pending claims if they have impermissibly retroactive effects). Service connection is currently in effect for right shoulder bursitis, residuals, status post fracture, right clavicle, cervical spine DJD (degenerative joint disease), and a right thumb scar. A review of the Veteran's service treatment records shows that in November 1982, he was treated for injuries from a motorcycle accident. Specifically, he was noted to have a fractured right clavicle, a fractured second right rib, and multiple abrasions and contusions of the abdomen, right side, and right shoulder. These reports do not note complaints of left shoulder symptoms, or a diagnosis involving the left shoulder. The remainder of the Veteran's service treatment reports are negative for treatment of left shoulder symptoms, or a diagnosis of a left shoulder disorder. Examination reports, dated in 1976, 1978, 1980, 1983, 1985, 1989, and 1991, all show that his upper extremities were clinically evaluated as normal. A separation examination report is not of record. The post-service medical evidence consists of a 1992 VA audiometric report, a January 1993 VA examination report, and VA reports (to include reports from Kirtland Air Force Base) and non-VA reports, dated between 1999 and 2011. A VA examination report, dated in August 2006, shows that the Veteran reported that he had bilateral shoulder pain beginning in the mid-1990's that was aggravated by cold and damp weather. He also complained of a limitation of motion. He stated that his shoulder pain was not constant, and that he had long pain-free periods that could last up to several months. The report notes that no specific direct shoulder injury was reported. The diagnosis noted DJD (degenerative joint disease) of the left shoulder, however, the examiner stated that left shoulder X-rays were normal. See also August 2006 VA X-ray report for the left shoulder. The examiner later indicated that the Veteran had bursitis that was at least as likely as not caused by or a result of his service. The examiner stated that the Veteran's C-file was not available for review. In March 2007, the RO noted that the Veteran's C-file had not been available for review by the VA examiner, and requested a supplemental opinion. In May 2007, a supplemental opinion was obtained. The physician stated that the Veteran's service medical records and VA records had been reviewed. The examiner concluded that it was less likely as not that the Veteran's left shoulder bursitis was caused by, or associated with, his fractured right clavicle. A VA examination report, dated in January 2011, shows that the examiner stated that the Veteran's C-file and medical records had been reviewed. The report notes that the date of onset for a left shoulder disability was 2002, and indicates that the Veteran reported a history of a bilateral shoulder injury, as well as a compound fracture of the right clavicle, during service in November 1982, with post-service left shoulder symptoms beginning in 2002, and left shoulder surgery in 2006. The examiner concluded that the Veteran's left shoulder disability is "less likely as not (less than 50/50 probability) causally related to service, or was caused or chronically worsened by the Veteran's service-connected right clavicle disability." The examiner further stated that it is less likely than not that his left shoulder disability is associated with his right clavicle fracture. The examiner explained that the narrative summary of the Veteran's hospital visit following his motorcycle accident was reviewed and that there was no documentation of left shoulder injuries at that time, and no additional medical records were provided to show diagnosis or treatment for a chronic left shoulder condition following his discharge from the military. The Board finds that the claim must be denied. The Veteran was not treated for left shoulder symptoms during service. Therefore, a chronic left shoulder disorder is not shown during service. See 38 C.F.R. § 3.303(a). As for the post-service medical evidence, the earliest medical evidence of a left shoulder disorder is dated in August 2006. This is over 13 years after separation from active duty service. This period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). In addition, the Board finds that the January 2011 VA opinion is highly probative evidence against the claim. In this opinion, it was concluded that the Veteran's left shoulder disorder is not related to the Veteran's active duty, or to his service-connected fractured right clavicle. See 38 C.F.R. §§ 3.303(d), 3.310; Allen. The examiner indicated that the Veteran's claims files had been reviewed, and the opinion is accompanied by a sufficiently detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board further points out that this opinion is consistent with the May 2007 VA opinion, which was also based on a review of the Veteran's C-file. Although the Board has considered the August 2006 VA opinion, the probative value of this opinion is reduced by the fact that it was not based on a review of the Veteran's C-file. Finally, there is no medical evidence to show that arthritis of the left shoulder was manifest to a compensable degree within one year of separation from service, and presumptive service connection is not warranted. See 38 C.F.R. §§ 3.307, 3.309. In summary, the evidence does not show that the Veteran has a left shoulder disability that is related to his service, or to a service-connected disability, and the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. With regard to the Veteran's own contentions, a layperson is generally not capable of opining on matters requiring medical knowledge. Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). 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. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 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). In adjudicating a claim, the Board must assess the competence and credibility of the Veteran. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board also has a duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The issue on appeal is based on the contention that a left shoulder disability was caused by service, or that it was caused or aggravated by a service-connected disability. To the extent that the Veteran has asserted that he began having left shoulder, his statements are competent evidence to show that he experienced these symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). However, as he has provided two significantly different dates for the onset of his left shoulder symptoms (mid-1990's vs. 2002), see August 2006 and January 2011 VA examination reports, the probative value of his assertions has been reduced. In addition, competency of evidence must be distinguished from the weight and credibility of the evidence, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence; if the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to a veteran's ability to prove his or her claim of entitlement to disability benefits based on that competent lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In summary, the Veteran does not have the requisite skills, knowledge, or training, to be competent to provide a diagnosis of a left shoulder condition, or to state whether such a condition was caused or aggravated by service, or by a service-connected disability. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). While the Board acknowledges that the absence of any corroborating medical evidence supporting his assertions does not render his statements incredible in and of themselves, such absence is for consideration in determining credibility. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of a veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (noting that lay evidence can be competent to establish a diagnosis when a layperson is competent to identify the medical condition). In this case, the Veteran's service treatment records do not show any relevant treatment. His post-service medical records do not show the existence of left shoulder disability prior to August 2006. In May 2007, and January 2011, VA physicians determined that his left shoulder disorder was not related to his service and/or his service-connected fractured right clavicle. There is no competent evidence to associate his left shoulder disability with any service-connected disability. Given the foregoing, the Board finds that the service treatment reports, and the post-service medical evidence, outweigh the Veteran's contentions to the effect that he has a left shoulder disability that is related to his service, or to a service-connected disability. Accordingly, the Board finds that the preponderance of the evidence is against the claim, and that the claim must be denied. The Board has considered the applicability of "benefit of the doubt" doctrine, however, the record does not demonstrate an approximate balance of positive and negative evidence as to warrant the resolution of these matters on that basis. 38 U.S.C.A. § 5107(b). II. The Veterans Claims Assistance Act of 2000 The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2010). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in August 2006. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. It appears that all known and available service treatment reports, and post-service records relevant to the issue on appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's VA and non-VA medical records. The Veteran has been afforded two examinations, and etiological opinions have been obtained. In this regard, in January 2011, the Board remanded this claim for additional development. The Board directed that the Veteran be afforded an examination, and that an etiological opinion be obtained. Subsequent to the Board's Remand, the Veteran was afforded an examination that covered his left shoulder. The examiner indicated that the Veteran's C-file had been reviewed, and the report includes a summary of the Veteran's reported history, and detailed examination findings. The opinion is accompanied by a sufficient rationale. Under the circumstances, the Board finds that the examiner had a sufficient basis for his opinion, and that this examination report is adequate. See Prejean v. West, 13 Vet. App. 444, 448- 449 (2000); Neives-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board therefore finds that there has been substantial compliance with its January 2011 remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to a veteran are to be avoided). Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER The appeal is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs