Citation Nr: 1129451 Decision Date: 08/09/11 Archive Date: 08/16/11 DOCKET NO. 08-07 775 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to service connection for disability of the left shoulder, to include arthritis, including as secondary to service-connected right shoulder disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from January 1951 to January 1954. This matter is before the Board of Veterans' Appeals (Board) on appeal of a March 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A November 2010, the Appellant testified during a Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In December 2010, the claim was remanded for additional VA examination. The requested examination report is of record, and the case has now been returned for further appellate consideration. FINDING OF FACT The probative evidence of record does not reflect that the Veteran exhibited symptoms of a left shoulder disability in service; the Veteran did not exhibit degenerative arthritis of the left shoulder within one year of separation from service; a left shoulder disability is not etiologically related to any injury or disease during the Veteran's active service; and a left shoulder disability is not causally related to or aggravated by service-connected right shoulder disability (residuals of fracture of the scapula and clavicle). CONCLUSION OF LAW A left shoulder disability was not incurred in or aggravated by active service; arthritis of the left shoulder may not be presumed to have been caused or aggravated by active service; and a left shoulder disability was not proximately due to or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2010). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a Claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, letters to the Veteran from the RO (to include letters in August 2006 and October 2006) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about the information and evidence VA would seek to provide; (3) informing the Veteran about the information and evidence he was expected to provide; and (4) requesting the Veteran to provide any information or evidence in his possession that pertained to the claims. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2009). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examinations, and statements and testimony from the Veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. The United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of this information in the August 2006 and October 2006 letters mentioned above. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2009); 38 C.F.R. § 3.303 (2010). 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. 38 C.F.R. § 3.303(d) (2010). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2010). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2010). Continuous service for 90 days or more during a period of war, or peace time service after December 31, 1946, and post-service development of a presumptive disease such as arthritis to a degree of 10 percent within one year from the date of termination of such service, establishes a rebuttable presumption that the disease was incurred in service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.307, 3.309 (2010). The Court has held that, in order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of inservice incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed inservice disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Pond v West, 12 Vet. App. 341, 346 (1999). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 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); 38 C.F.R. § 3.310 (2010). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Background The STRs reflect that the Veteran incurred a simple fracture of the right shoulder scapula and clavicle in March 1953. There was no mention of left shoulder injury at the time. The record includes photos of the automobile in which this accident occurred. Service connection was established for residuals of fracture of the right scapula and clavicle upon rating determination in May 1954. A noncompensable rating was assigned. In 2006, the Veteran filed various claims, to include an increased rating for his right shoulder and for service connection for a left shoulder disability. This appeal ensued following rating decision in March 2007. At that time, service connection for a left shoulder disability was denied. It is noted, however, that the noncompensable rating in effect for the service-connected right shoulder disorder was increased to 20 percent. Review of post service private records dated in April 1986 reflects that the Veteran was seen by a private physician for an apparent physical. The report shows that the Veteran gave blood for various tests and underwent urinalysis testing. The physician's report indicates that he had enclosed some "helpful shoulder exercises." A private emergency room report from December 1992 is on file. Reportedly, appellant had been in a motor vehicle accident where he had been hit from behind. He complained of neck and left shoulder pain. A whip lash injury was diagnosed. Additional private record show that in January 2004 the Veteran was treated for shoulder pain and the diagnosis was of possible arthritis. VA records reflect complaints of shoulder pain in 2006. Additional private records in August 2007 include X-rays of the left shoulder with report of degenerative osteoarthritis changes. There was significant loss of motion with pain. The examiner found that the Veteran suffered from osteoarthritis of the left shoulder. The physician noted that there was a possible relationship between this condition and an inservice car accident in the 1950s, based on history as provided by the Veteran. Another private physician in December 2007 also opined that the Veteran's left shoulder degenerative arthritis could relate to his accident in the 1950s when he did suffer an injury to the right shoulder and "probably" the left shoulder as well. Upon VA orthopedic examination in January 2008, it was noted by the examiner that the Veteran's left shoulder problems started in the 1980s and worsened in the mid 1990s. The Veteran thought that his left shoulder resulted from overcompensating for his right shoulder condition. Following evaluation, it was determined by the examiner that the Veteran's left shoulder condition (degenerative arthritis with residual pain and limitation of motion with no instability) was less likely caused by his service-connected right shoulder condition. In addition, the examiner concluded that it would be mere speculation to link the left shoulder condition to an inservice automobile accident as there was no notation of a left shoulder condition at the time of the accident. It was noted that appellant had been employed in a position that did not require heavy lifting, and there was no indication of strain on the non-service connected disorder. The Veteran provided testimony in support of his claim in November 2010. He claims that his left shoulder condition either resulted from the inservice car accident or is associated with his service-connected right shoulder disorder. In December 2010, the Board remanded the claim for additional VA evaluation. The requested exam was conducted in April 2011. The diagnosis was severe degenerative osteoarthritis of the left shoulder. The examiner opined that this condition was less likely as not caused by or a result of service injury and/or the service-connected right shoulder condition. The examiner pointed out that documentation in the private and VA medical records showed that his left shoulder condition was secondary to degenerative osteoarthritis. While there was private treatment record in 1986 documenting shoulder pain, it was not indicated which shoulder. Moreover, the contemporaneous records from the 1953 auto accident did not reflect any left shoulder complaints, noting only the simple fracture of the right scapula and clavicle. Given that the records did not reflect inservice left shoulder injury, she found that it was not possible to establish a connection between current left shoulder pathology and military service. Analysis After review of the probative evidence, it is concluded by the Board that service connection for a left shoulder degenerative arthritis is not warranted on a direct, presumptive, or secondary basis. In this case, there are various examiners' opinions of record. It is important to note that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, his of her knowledge and skill in analyzing the data, and his or her medical conclusion. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the adjudicator. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Whether a physician provides a basis for his or her medical opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The U.S. Court of Appeals for Veterans Claims has expressly declined to adopt a 'treating physician rule' which would afford greater weight to the opinion of a veteran's treating physician over the opinion of a VA or other physician. See Guerrieri, supra. Under the circumstances of this case, the Board finds that the April 2011 VA examination report is the most probative of all of the etiology opinions of record, as this is the only opinion that is both based on a thorough review of the Veteran's medical history and provides extensive rationale to justify its conclusion. Even though there are two private opinions from 2007 that are supportive of the Veteran's claim, and it is noted that these opinions were offered by physicians who have treated the Veteran and are presumably familiar with his medical history, the Board notes that there is no "treating physician rule" in VA law requiring the Board to give additional evidentiary weight to the opinion of a physician who treats the Veteran. See also White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Van Slack v. Brown, 5 Vet. App. 499, 502 (1993); and Chisem v. Brown, 4 Vet. App. 169 (1993). Certainly, the Board is not prohibited from taking those physicians' familiarity with the Veteran's history into account based on their having provided treatment. However, there is no indication here that either physician was actually treating the Veteran when the inservice accident occurred, or when he claims that his left shoulder started many years later in the 1980s, and neither physician indicates that he has reviewed medical records documenting the nature of the Veteran's left shoulder disability. The Board further notes that the probative value of these private physicians' opinions are severely limited by the lack of rationale. Neither examiner addresses the long period of time (at least 45 years) from the time of the inservice accident and the confirmed diagnosis of left shoulder arthritis (in approximately 2004). The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that Veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom., Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). Nor did the private physicians explain how there could be traumatic injury to the left shoulder resulting in arthritis many years later when the Veteran had no left shoulder injury complaints at the time of the accident in 1953. In the absence of contemporaneous records showing left shoulder complaints, the Board cannot accept the private physicians' 2007 opinions as being probative in determining whether post service left shoulder arthritis is related to military service. Moreover, there was no accounting of the reported injury to the left shoulder following a motor vehicle accident in 1992. Moreover, as to one physician's opinion that the Veteran "probably" suffered a left shoulder injury in 1953, the Court has held that medical opinions which are speculative, general or inconclusive in nature cannot support a claim. See Bostain v. West, 11 Vet. App. 124, 127- 28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (medical opinion expressed in terms of 'may' also implies 'may or may not' and is too speculative to establish medical nexus); Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as 'could have been' is not probative). See also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992); 38 C.F.R. § 3.102 (describing the concept of reasonable doubt in adjudicating service connection claims as not being one arising from pure speculation or remote possibility). The Board finds the April 2011 VA examination report to be the most probative evidence of record for several reasons. Her reports reflects that she viewed the Veteran's complete medical record, to include the medical evidence of record, the STRs, and VA and private medical records, with the purpose of determining whether the Veteran's left shoulder degenerative arthritis was of service origin or was caused or aggravated by his service-connected right shoulder disability. The Veteran's pertinent medical and post-service occupational history as contained in these medical records and as reported by the Veteran himself during the examination was discussed by the examiner in the course of explaining her conclusions. For these reasons, the Board finds that the April 2011 VA examination report presents probative evidence to the questions at hand. With respect to the Veteran's own opinion, the Board recognizes that there are instances in which lay testimony can provide probative evidence in medical matters. A lay person may be competent to offer testimony on certain medical matters, such as describing symptoms observable to the naked eye, or even diagnosing simple conditions such as a dislocated shoulder. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). A lay person is not, however, competent to offer an opinion on complex medical questions, such as determining that his left shoulder disability originated in service or was caused or aggravated by his right shoulder disability. Therefore, this is not a case in which the Veteran's beliefs alone can serve to establish any association between his left shoulder disability and his military service or to his service-connected right shoulder disability. See Jandreau, supra. Thus, service connection for a left shoulder disability as secondary to a service-connected right shoulder disability must be denied. The pertinent medical evidence is against this claim, and that examiner, who reviewed the pertinent records, is considered highly probative as to this issue. In summary, the Board concludes that the preponderance of the evidence is against granting entitlement to service connection for a left shoulder disability, either on a direct, secondary, or presumptive basis. As the evidence preponderates against the claim, the benefit-of-the-doubt doctrine is inapplicable, and service connection must be denied. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2009); Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). ORDER Entitlement to service connection for disability of the left shoulder, to include arthritis, including as secondary to service-connected right shoulder disability, is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs