Citation Nr: 1119799	
Decision Date: 05/23/11    Archive Date: 06/06/11

DOCKET NO.  09-34 778	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana


THE ISSUE

Entitlement to service connection for a right shoulder disability.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

J. C. Schingle, Associate Counsel



INTRODUCTION

The Veteran served on active duty from January 1984 to January 1988.

This matter comes before the Board of Veterans' Appeals (Board) from September 2008 rating action of a Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.

The record reflects that the Veteran had requested a hearing before a Veterans Law Judge at the RO in conjunction with this appeal and that such a hearing was scheduled for February 2011.  However, the Veteran failed to report for this hearing.  Accordingly, his hearing request is deemed withdrawn.  See 38 C.F.R. § 20.704(d).

The issue of entitlement to service connection for tinnitus has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  


FINDINGS OF FACT

1.  All relevant evidence necessary for the equitable disposition of the issue adjudicated herein has been obtained.

2.  At no time during the current appeal period has the Veteran been found to have a right shoulder disability that is causally or etiologically related to his active duty.


CONCLUSION OF LAW

A right shoulder disability was not incurred in, or aggravated by, active service.  38 U.S.C.A. §§ 1131, 1137, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act (VCAA)

With regard to the issue on appeal, VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2010).  Specifically, a pre-decisional letter sent to the Veteran in April 2008 fully satisfied the duty to notify provisions pertaining to his claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  In that correspondence, the Veteran was notified of the information and evidence necessary to substantiate his service connection claim; which evidence, if any, he should obtain; which evidence, if any, will be retrieved by VA; and the general criteria for assigning disability ratings and effective dates.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  

Further, the Veteran's service and VA treatment records have been obtained, to the extent possible.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Board notes that the Veteran was afforded a pertinent VA examination in September 2008.  38 C.F.R. § 3.159(c)(4) (2010).  When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  The Board finds that the VA examination obtained in this case is adequate as it was predicated on a review of the claims folder and medical records contained therein; contained a description of the history of the disability at issue; and documented and considered the Veteran's complaints and symptoms.

Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c)(4) (2010).  Thus, the Board finds that there is no indication in the record that any additional evidence relevant to this claim is available and not part of the claims file.  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  

Law and Analysis

Applicable law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010).  Service connection may also be granted for certain chronic diseases when the disease is manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309.  

In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service.  38 C.F.R. § 3.303(d).  The term 'active military, naval, or air service' includes active duty, any period of active duty for training 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 inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty.  38 U.S.C.A. § 101(24) (West 2001).

Thus, in order to establish service connection, a claimant must generally submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus or relationship between the current disability and the in-service disease or injury.  Pond v. West, 12 Vet. App. 341, 346 (1999).

Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes.  Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  However, lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007).  See also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence).

In the present appeal, the Veteran contends that he experienced a right shoulder injury due to an inservice fall in approximately 1987.  He specifically reported jamming the shoulder when he fell and stated that he did not seek inservice treatment, but has continued to experience intermittent joint pain since that time.  He reported flare-ups of pain when lifting and carrying objects. 

A review of the service treatment records shows no evidence of complaints of or treatment for a right shoulder disability.  Notably, the only service record of shoulder pain pertains to the left shoulder.  In an October 1988 report of medical history, the Veteran noted left shoulder pain in bad weather.  There is no indication that treatment or diagnosis was provided.

In September 2008, the Veteran was afforded a VA examination of the right shoulder.  The examiner reviewed the claims file and noted the Veteran's complaints of right shoulder pain since service.  He indicated that the Veteran reported that he was not seen for shoulder pain in service, but was seen about five years ago and when an X-ray was done, which was negative.  He reported a recurrence of right shoulder pain in 2007, which lasted a couple of months, and again in January 2008 when he fell and jammed it.  On examination, the examiner found pain and stiffness in the joint with full range of motion, no limitation of motion with repetitive testing, some popping in the joint, negative radiographic findings, and no osseous or articular abnormalities.  The examiner concluded that there was insufficient clinical evidence at the present time to warrant a diagnosis of any acute or chronic disorder or residuals thereof.  

Before turning to the merits of the Veteran's claim, the Board must address the probative value of the medical evidence of record.  Upon review, the Board determines that the 2008 VA medical opinion is adequate, competent, and the only probative medical opinion of record.  Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (the credibility and weight to be attached to such opinions are within the province of the Board as adjudicators); see also Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when VA gives an adequate statement of reasons and bases).  

In this regard, the examiner reviewed and considered the complete medical records in the case, including service treatment records and the Veteran's statements.  See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (holding that factors for assessing the probative value of a medical opinion included the physician's access to the claims file and the thoroughness and detail of the opinion); see also Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994) (greater weight may be placed on one physician's opinion over another depending on factors such as reasoning employed by the physicians and whether or not and the extent to which they reviewed prior clinical records and other evidence).  Also, the VA examiner reviewed the Veteran's entire medical history, but found no sufficient evidence to diagnose a right shoulder disability.  Although the Veteran contends that additional testing is needed, the Board defers to the medically-trained VA examiner at the time of examination to determine what studies and testing are needed to appropriately examine the patient.  Additionally, the Board finds the VA examiner's findings supported by the evidence of record.  Therefore, the Board finds the VA examination adequate and probative.  

The Board also notes that the existence of a current disorder is the cornerstone of a claim for VA disorder compensation.  See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the United States Court of Appeals for Veterans Claim's (Court) interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disorder for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992).  That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury.  See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992).  In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit.  Id.  

In this case, the record shows no current diagnosis of a right shoulder disability.  Although the Veteran contends that he currently experiences right shoulder pain, treatment records show no evidence of a diagnosis, and the Veteran is not competent to render such opinion.  Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (holding that a symptom, such as pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disorder for which service connection may be granted); Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992) (holding that lay testimony is competent to establish pain or symptoms, but not establish a medical opinion).  Furthermore, as noted above, the 2008 VA the examiner indicated that there was not sufficient clinical evidence to diagnose a right shoulder disorder, based on negative x-ray findings.  

The Board has considered the Veteran's contentions that his right shoulder condition is related to service; however, he is not competent to offer a medical opinion.  See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992).  Further, such statements are outweighed by the probative medical evidence of record showing insufficient clinical findings to render a diagnosis of the right shoulder.  

For the foregoing reasons, the Board finds that the evidence of record shows that, at no time during the current appeal, has a right shoulder disability associated with the Veteran's active service been diagnosed.  As the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application, and entitlement to service connection for such must be denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  


ORDER

Service connection for a right shoulder disability is denied.


____________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs