Citation Nr: 1138652 Decision Date: 10/18/11 Archive Date: 10/25/11 DOCKET NO. 08-04 361 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection on a secondary basis for a right shoulder disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. W. Loeb, Counsel INTRODUCTION The Veteran served on active duty from April 1984 to April 1988. This case comes before the Board of Veterans' Appeals (Board) on appeal of a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office in St. Louis, Missouri (RO). FINDING OF FACT The Veteran's right shoulder disorder was not caused or chronically worsened by service-connected disability. CONCLUSION OF LAW The criteria for service connection for a right shoulder disorder have not been met. 38 U.S.C.A. §§ 5103A, 5107, 7104 (West 2002); 38 C.F.R. § 3.310 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2011). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the issue decided. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO sent the Veteran a letter in July 2006, prior to adjudication, that informed him of the requirements to establish entitlement to secondary service connection. In accordance with the requirements of VCAA, the letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. Additional private evidence was subsequently added to the claims files after the letter. In compliance with the duty to notify the Veteran of what information would substantiate his claim, the Veteran was informed in the July 2006 letter on disability ratings and effective dates. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159. A VA orthopedic examination with nexus opinion was conducted in November 2007. The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issue decided on appeal. The Veteran has been given ample opportunity to present evidence and argument in support of his claim. All general due process considerations have been complied with by VA, and the Veteran has had a meaningful opportunity to participate in the development of the claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2011). Analysis of the Claim The Veteran seeks service connection for a right shoulder disorder as secondary to his service-connected right ankle disorder. He has contended that he injured his right shoulder in 2004 when his right ankle gave way while climbing the stairs and he fell on the arm rail and twisted his right shoulder. He was granted service connection for a right ankle disability by rating decision in February 1989, which was assigned a 10 percent rating effective April 8, 1988. Service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2011). Additional disability resulting from the aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439 (1995). In order to prevail on the issue of entitlement to secondary service connection there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The benefit of the doubt rule provides that the Veteran will prevail in a case where the positive evidence is in a relative balance with the negative evidence. Therefore, the Veteran prevails in his claim when (1) the weight of the evidence supports the claim or (2) when the evidence is in equipoise. It is only when the weight of the evidence is against the Veteran's claim that the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). Laypersons are not competent to provide evidence in complex medical situations. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Instead, competent medical evidence is required. Such evidence is that provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider is weighed by such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. Prejean v. West, 13 Vet. App. 444 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379 (1998). See also Claiborne v. Nicholson, 19 Vet. App. 181 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345 (1998). In order for a medical opinion to be probative, the medical examiner must have correct information regarding the relevant facts of the case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Guerrieri v. Brown, 4 Vet. App. 467 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches); see Shipwash v. Brown, 8 Vet.App. 218 (1995); Flash v. Brown, 8 Vet.App. 332 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the Veteran's claims folder); but see D'Aries v. Peake, 22 Vet. App. 97, 106 (2008) (holding that it is not necessary for a VA medical examiner to specify review of the claims folder where it is clear from the report that the examiner has done so and is familiar with the claimant's extensive medical history). The Veteran's service treatment records do not reveal any complaints or findings of a right shoulder disorder. It was noted by D. B. Fagan, M.D., in December 1993, that there was tenderness about the Veteran's right shoulder. According to an April 1997 statement from P. H. Young, M.D., the Veteran complained of residual discomfort in the neck and, at times, into the right shoulder region. VA treatment reports dated from December 2003 to February 2005 reveal that the Veteran complained in January 2004 of right shoulder pain beginning several months earlier after he trying to pitch a ball; he was told that he had shoulder strain. According to records for September 2004, the Veteran complained of right shoulder pain after his right ankle locked up while on stairs in his home, causing him to fall and grab the handrail. X-rays of the right shoulder in September 2004 were considered normal. An MRI of the right shoulder in February 2005 revealed mild to moderate osteoarthritis of the inferior glenohumeral joint, moderate osteoarthritis of the acromioclavicular joint without impingement, and an intact rotator cuff. Private treatment reports dated from January to October 2006 reveal a July 2006 notation that the Veteran had had right shoulder pain since January or February 2005 when he fell on some stairs and had to grab the banister, causing a pulling sensation in the right shoulder. A July 2006 MRI showed a full tear of the right rotator cuff. According to a January 2007 statement from R. I. Markenson, M.D., the Veteran complained that his right shoulder began hurting approximately two years earlier after his ankle gave way and he fell while reaching up with his arm or the hand rail and that this initial fall started the process that led to his rotator cuff tear. St. Anthony's Medical Center records for February 2007 reveal that the Veteran underwent right rotator cuff repair with acromioplasty. Subsequent medical records for 2007 from Dr. Markenson reveal that the Veteran underwent physical therapy. A VA shoulder evaluation was conducted in November 2007, which included review of the claims files. The Veteran complained of right shoulder pain. He gave a history of having injured his right shoulder in 2004, and the examiner noted the September 2004 report of a right shoulder injury. Chronic residuals of a right rotator cuff tear were diagnosed. The examiner concluded, based on a review of the evidence and examination of the Veteran, that it was less likely than not that the fall on the stairs caused the Veteran's rotator cuff tear because the February 2005 MRI, which was after his September 2004 fall, revealed no evidence of a rotator cuff tear; it was noted that the osteoarthritic changes in the shoulder joint seen on the MRI would predispose the joint to rotator cuff pathology. Private treatment records dated through July 2008 involve treatment for other disabilities. The Board is obligated under 38 U.S.C.A. § 7104(d) (West 2002) to analyze the credibility and probative value of all evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide reasons for its rejection of any material evidence favorable to the Veteran. See Eddy v. Brown, 9 Vet. App. 52 (1996); Meyer v. Brown, 9 Vet. App. 425 (1996); Gabrielson v. Brown, 7 Vet. App. 36 (1994). The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Brown, 125 F.3d 1477, 1481 (Fed. Cir. 1997). The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). Although there is medical evidence both for and against the claim, the evidence against the claim has more probative value. Private treatment reports for July 2006 reveal that the Veteran had had right shoulder pain since he fell on some stairs in early 2005 when his right ankle gave way, with a right rotator cuff tear subsequently diagnosed. Dr. Markenson noted in January 2007 that the Veteran complained that his right shoulder began hurting after he fell while reaching up with his arm and that this initial fall started the process that led to a rotator cuff tear. However, the July 2006 report does not link the subsequent finding of a right rotator cuff tear to the Veteran's right ankle, and Dr. Markenson's opinion does not address the February 2005 MRI finding of a normal rotator cuff. The opinions that could be considered in favor of the claim are not based on a review of the claims files, as is the November 2007 VA opinion, and do not include a clear rationale, as does the VA opinion. In contrast, the November 2007 VA opinion finds that the Veteran's right rotator cuff tear is less likely than not causally related to the fall in September 2004 because an MRI of the shoulder within six months of the fall did not find any rotator cuff defect. The Veteran's contention as to the connection between his claimed right shoulder disorder and his service-connected right ankle disability has been investigated as under the third component in Jandreau. However, the Board finds it to be unsubstantiated by medical evidence. While the Veteran is competent to report that he had right shoulder pain after he fell in September 2004, he is not competent to report that his current right shoulder disability is due to service-connected right ankle disability; and the preponderance of the competent medical opinion does not support a connection between a right shoulder disorder and service-connected right ankle disability. Because there is a November 2007 VA opinion on file that is based on a review of the claims files and examination of the Veteran, the Board finds that the May 2011 request on behalf of the Veteran to remand this case for a new examination and nexus opinion is not warranted. Although private treatment records were added to the claims folder after the November 2007 opinion, they do not relate to whether the Veteran has a right shoulder disorder causally related to his service-connected right ankle disability. As the preponderance of the evidence is against the claim for service connection for a right shoulder disorder on a secondary basis, the doctrine of reasonable doubt is not for application with respect to this issue. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Service connection for a right shoulder disorder is denied. ____________________________________________ Thomas H. O'Shay Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs