Citation Nr: 1128171 Decision Date: 07/28/11 Archive Date: 08/04/11 DOCKET NO. 10-01 709 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Jackson, Mississippi THE ISSUES 1. Entitlement to service connection for a right shoulder disorder. 2. Entitlement to service connection for fibromyalgia. REPRESENTATION Appellant represented by: Mississippi Veterans Affairs Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Turner, Associate Counsel INTRODUCTION The Veteran served on active duty for training from June 1979 to September 1979, and active duty from December 1979 to December 1983, and from August 1987 to April 1991. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision that was issued by the Regional Office (RO) in Jackson, Mississippi. The Veteran testified before the undersigned Veterans Law Judge at a March 2011 hearing that was held at the RO. FINDINGS OF FACT 1. The evidence does not show that it is at least as likely as not that a right shoulder disorder is due to the Veteran's military service. A right shoulder disorder did not onset until many years after service. Arthritis was first shown years after service. 2. The evidence does not show that it is at least as likely as not that fibromyalgia is due to the Veteran's military service. Fibromyalgia did not onset until many years after service. CONCLUSIONS OF LAW 1. A right shoulder disorder was not incurred in or aggravated by active duty or active duty for training, and arthritis may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 101(24), 106, 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2010). 2. Fibromyalgia was not incurred in or aggravated by active duty or active duty for training. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131, 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 CONCLUSIONS Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and 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. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In this case, the Veteran was sent a letter in August 2008 that explained the parameters of VA's duty to assist him with developing evidence in support of his claim. The letter also explained what the evidence needed to show in order to establish service connection for a claimed disability and explained the manner whereby VA assigns ratings and effective dates for service connected disabilities. In addition to its duty to provide the claimant with the above described notices, VA also must make reasonable efforts to assist the claimant with obtaining the evidence that is necessary in order to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including the Veteran's service treatment records for the period of service from August 1987 to April 1991, VA treatment records, Social Security Administration (SSA) disability records, and a transcript of the Veteran's testimony at the March 2011 hearing. In this case, the Veteran's service treatment records (STRs) from his first periods of training from June 1979 to September 1979 and from active duty from December 1979 to December 1983 are unavailable through no fault of the Veteran. While at his March 2011 hearing the Veteran speculated that his medical records might have been taken as part of an investigation of a bus accident and not returned, no records, such as a separation examination, could be found for these periods of service even for after the time of the bus accident; this demonstrates that the records became unavailable at some time after the investigation of the bus accident. The Board concludes that all reasonable efforts were made to try to obtain these records, but the appropriate records custodian does not have them. The Board acknowledges its heightened obligation to consider carefully the benefit of the doubt rule in cases where the Veteran's service treatment records are unavailable through no fault of the Veteran. O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The Veteran was not afforded a VA examination with respect to his claims for service connection for a right shoulder disorder and fibromyalgia. In this regard, the Board notes that VA is required to provide a medical examination or medical opinion when such an examination or opinion is necessary in order to make a decision on the claim. 38 U.S.C.A. § 5107A(d). An examination is considered necessary if the record contains competent evidence that (a) the Veteran has a current disability or persistent or recurrent symptoms of a disability; (b) the disability or symptoms may be associated with the Veteran's service; and (c) the record does not contain sufficient medical evidence for VA to make a decision on the claim. Id. In this case VA was not required to provide an examination with respect to these issues because the record does not contain any competent and credible evidence that the Veteran's right shoulder disorder or his fibromyalgia may be associated with his military service or with a service connected disability. As will be discussed below, there is no credible evidence of continuity of symptoms and these disorders onset many years after service. Service connection The Veteran contends that his right shoulder disorder and fibromyalgia were caused by his military service. Specifically, he claims that these disorders onset as a result of a bus accident that occurred in service in 1983 or as the result of exposure to cold while he was stationed in Alaska. Service connection may be granted for a disability resulting from disease or injury that was incurred in, or aggravated by, service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection for some chronic diseases, including arthritis, may be granted if manifest to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted for any disease diagnosed after discharge if all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted for disease or injury incurred in or aggravated by active duty for training. 38 U.S.C.A. §§ 101(24), 106, 1110, 11131. To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The requirement that a current disability exist is satisfied if the claimant had a disability at the time his claim for VA disability compensation was filed or during the pendency of the claim. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). A. Right shoulder disorder At his hearing dated in March 2011, the Veteran testified that during his period of service from December 1979 to December 1983, while he was stationed in Alaska, he was in a bus accident. In a whiteout the Veteran accidentally drove the bus off of the side of a cliff and it flipped over. He was treated at a hospital. The Veteran testified that he believed that his right shoulder disorder resulted from this bus accident and exposure to the cold. He contended that after the accident his shoulder hurt, but he thought that this was due to the cold. He testified that he abused alcohol and marijuana in service because of the pain. Only many years after service did he discover that he had a torn nerve. He testified that his right shoulder disorder was diagnosed in or around 2007, after he stopped abusing alcohol. As noted, the Veteran's service treatment records from his period of service from December 1979 to December 1983 are unavailable. However, treatment records from his later period of service from August 1987 to April 1991 are of record. These records clearly demonstrate that the Veteran did not have a shoulder disorder until sometime after he left the service in April 1991. On a "Report of Medical History" dated in June 1987, prior to his re-entry into the service, the Veteran denied having a painful or trick shoulder. He was examined at the military entrance processing station in Jackson, Mississippi at that time. There were no findings with respect to the right shoulder. The Veteran's service treatment records for this period of service do not contain any complaints concerning the right shoulder. On a Report of Medical History dated in July 1990 the Veteran again denied having a painful or trick shoulder. He reported that he was in good health. An examination that took place at that time, in Fort Hood, Texas, did not note any abnormalities of the right shoulder. On another Report of Medical History dated in March 1991, which was completed together with his separation examination, the Veteran again denied having a painful or trick shoulder. He reported that he was in good health. The accompanying examination did not note any problems related to the right shoulder. VA treatment records reflect that the Veteran underwent physical therapy for his right shoulder starting in May 2008. At that time, the Veteran reported that in 1991 he fell during a 12 mile road march with a 100 pound pack on his back. He reported that he passed out and fell on his right shoulder. Service treatment records indicate that in December 1989 after twisting his right ankle the Veteran became dizzy and passed out while marching. There is no mention of any injury to the right shoulder. There is no mention of any incident in which the Veteran fell during a march in 1991. In August 2008 the Veteran reported that he had progressive pain in his right shoulder over the past year. He had not had success with therapy or oral medications. He had no prior surgery on the neck or the shoulder. He identified the lateral aspect of the shoulder as the area of pain. He reported that the pain came down the side of his arm to his elbow. It had progressed to the point where he was having pain at night, pain at rest, and the greatest pain with activities where he could barely move his arm away from his body. He stated that any motion away from his body caused pain. Review of MRIs showed a full thickness tear of the supraspinatus. Additionally seen was inferior spurring with degenerative changes of the acromioclavicular (AC) joint. A surgical evaluation was recommended. The Veteran had right shoulder rotator cuff repair in October 2008. In February 2009 he reported that he still had pain with extreme motions and in sleep. At that time, the Veteran attributed his right shoulder pain to a bus accident in 1983 at which time he thought that he had a pulled muscle but it got worse and worse over the years. Subsequent records show continued pain in the Veteran's right shoulder. While the Veteran reported that he had right shoulder pain since the 1983 bus accident, his testimony in this regard is not credible. The Veteran explicitly denied having any right shoulder pain on Reports of Medical History that he filled out in June 1987, July 1990, and March 1991, all of which were well after the 1983 bus accident when the Veteran claims to have injured his right shoulder. Examinations conducted in June 1987, July 1990, and March 1991 disclosed no abnormalities of the right shoulder. Although the Veteran was seen for other complaints such as a sprained ankle and a back muscle strain, he did not complain of or seek treatment for any problem with his right shoulder during his entire second period of service. Moreover, his explanation that he thought his right shoulder pain was due to cold is not credible given that the Veteran entered his second period of service in Mississippi and exited it in Texas, where cold temperatures are not generally prevalent. There is no record of any treatment for the Veteran's right shoulder until 2008, approximately 17 years after his most recent service ended. His explanations of the onset of his shoulder pain since that time were contradictory. He first attributed it to a fall while marching in 1991, then indicated that it onset and got progressively worse over the last year (2007), and finally he attributed it to the 1983 bus accident for the first time in 2009. He never described a clear continuity of symptoms since either of these events to his treatment providers, and his story about the march is flatly contradicted by his service treatment records which showed an episode of syncope while marching in 1989 with no mention of a right shoulder injury, The credible evidence indicates that the Veteran's shoulder disorder onset within the year prior to 2008, as the Veteran described to his physician in August 2008, when he described pain that occurred and got progressively worse over the past year. This is many years after the Veteran's service. There is no credible evidence linking the Veteran's right shoulder disorder, first diagnosed in 2008, with any disease or injury that occurred during his service. Rather, this disorder onset many years after his service. Even assuming that the Veteran may have injured his shoulder in a bus accident in 1983, his numerous denials of any shoulder pain throughout his second period of service shows that any such pain was acute and transitory and resolved. There is also no evidence of the onset of arthritis within 1 year of the Veteran's service. B. Fibromyalgia At his March 2011 hearing the Veteran testified that he believed that his fibromyalgia was caused by the 1983 bus accident or exposure to cold while stationed in Alaska. He testified that a health care provider told him that there was a possible relationship between the bus accident and his fibromyalgia, but no such opinion is of record in the claims file. The Veteran testified that his shoulder hurt during his second period of service and that his knees hurt during a march which caused him to fall. The Veteran testified that he abused alcohol and marijuana because of the pain instead of seeking treatment. The Veteran did not clearly identify any symptoms associated with fibromyalgia that existed during his second period of service, mentioning only shoulder pain, which he ascribed to an injury as noted above, and knee pain during a march on one occasion. As previously, the Veteran's complaints of right shoulder pain during service are not credible given that he specifically denied experiencing such pain on multiple occasions during his last period of service from August 1987 to April 1991. Moreover, his testimony that he fell when his knees gave out due to pain during a march is not credible because service treatment records pertaining to that incident are of record and show that the Veteran experienced an episode of syncope after reinjuring a twisted ankle. No mention was made of knee pain or other joint pains at that time. On a "Report of Medical History" dated in June 1987, prepared in connection with the Veteran's enlistment into his latest period of service, the Veteran specifically denied experiencing swollen or painful joints, and no abnormal findings other than a scar on the left arm were noted upon examination at that time. On a "Report of Medical History" dated in July 1990, the Veteran again denied experiencing swollen or painful joints. He wrote that he was in good health and not taking any medications. No abnormalities other than a scar on the left arm and elevated cholesterol were noted upon examination at that time. On a "Report of Medical History" dated in March 1991, prepared in conjunction with his separation examination, the Veteran again denied experiencing swollen or painful joints. He wrote that he was in good health and not taking any medications. At his separation examination of the same date no abnormalities were noted other than a scar on the left arm. The Veteran's available service treatment records do not show a diagnosis of, or treatment for, fibromyalgia. They do not show treatment for joint pains apart from those associated with a sprained ankle and one episode of back muscle strain in March 1988 which the Veteran attributed to physical training and lifting a small tent. The Veteran's contention that he did not seek treatment for his pain because he was self-medicating with alcohol and marijuana is not credible because the Veteran's service treatment records show that he sought treatment for numerous other ailments including a sprained ankle, back muscle strain, congestion, and sore throat. Since the Veteran sought treatment for these other problems, it is likely that if he in fact was experiencing joint pains that he would have sought treatment for these as well. VA treatment records reflect that the Veteran was diagnosed with fibromyalgia in July 2008. At that time the Veteran reported that he had joint pains for at least a year that started in his right shoulder and progressed to his feet, knees, neck, and back. The Veteran's 2008 report of joint pains that started at least 1 year ago is inconsistent with his current claim of joint pains during service which ended in 1991, approximately 17 years previously. The credible evidence indicates that the Veteran's joint pains onset in or around 2007, which is many years after the Veteran's service. He was not diagnosed with fibromyalgia until approximately 17 years after service. There is no credible evidence that the Veteran's fibromyalgia is associated with the 1983 bus accident, exposure to cold, or anything else that occurred during his service. While the Veteran testified that he was told by a medical professional that there was a possible relationship between the bus accident and his fibromyalgia, this in not reflected in any treatment records and there is no medical opinion to this effect in the claims file. There is merely the Veteran's unverified statement, and, as discussed above, the Veteran's testimony in many respects lacked credibility. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claims. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, the appeal is denied. (CONTINUED ON NEXT PAGE) ORDER Service connection for a right shoulder disorder is denied. Service connection for fibromyalgia is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs