Citation Nr: 1237506 Decision Date: 11/01/12 Archive Date: 11/09/12 DOCKET NO. 01-00 928 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a left shoulder disability, to include as secondary to the service-connected residuals, partial subluxation, right sternoclavicular joint with traumatic arthritis. 2. Entitlement to an increased rating on an extra-schedular basis for the service-connected residuals, partial subluxation, right sternoclavicular joint with traumatic arthritis, evaluated as 20 percent disabling prior to April 14, 2005, and as 40 percent disabling from that date. 3. Entitlement to an effective date earlier than April 14, 2005, for the grant of an increased rating of 40 percent for the service-connected residuals, partial subluxation, right sternoclavicular joint with traumatic arthritis. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran had active service from September 1977 to February 1979. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. By a June 2000 decision, the RO denied the issue of entitlement to a disability evaluation greater than 20 percent for the service-connected right shoulder disability. In a February 2005 determination, the RO denied service connection for a left shoulder disability. By rating decision in August 2005, the RO increased the right shoulder disability rating to 40 percent, effective April 14, 2005. The Veteran appealed the effective date of this rating. In May 2006, a Travel Board hearing was held before an Acting Veterans Law Judge (AVLJ), and a transcript of that hearing is of record. However, the AVLJ who conducted the hearing has since left the Board. In July 2012, the Board sent a letter to the Veteran informing him of this fact and giving him the opportunity to testify at another hearing. The letter specifically instructed the Veteran that if he did not respond within 30 days from the date of the letter, the Board would assume that he did not want another hearing. To date, the Veteran has not responded. The Board previously remanded these issues in February 2008 and October 2011 for further development. In the October 2011 remand, the Board directed the RO to issue a statement of the case with respect to the issue of an increased rating for hypertension, which was done in May 2012. However, the Veteran failed to submit a substantive appeal. Accordingly, this issue is not in appellate status. The issues of entitlement to an increased disability rating on an extra-schedular basis for the service-connected right shoulder disability, evaluated as 20 percent disabling prior to April 14, 2005, and as 40 percent disabling from that date; and entitlement to an effective date earlier than April 14, 2005, for the grant of an increased rating of 40 percent for the service-connected right shoulder disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT A left shoulder disability was not manifested during the Veteran's active duty service; is not the result of a disease or injury in service; and is not causally related to, or aggravated by, the Veteran's service-connected right shoulder disability. CONCLUSION OF LAW The criteria for service connection for left shoulder disability have not been met, to include as secondary to service-connected right shoulder disability. 38 U.S.C.A. §§ 1101, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). Under the VCAA, VA 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA 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. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In letters dated in November 2004 and March 2008, the RO notified the Veteran of the evidence needed to substantiate his claim for service connection for a left shoulder disability on a direct and secondary basis. These letters also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). In any event, the VCAA letters complied with this requirement. The Veteran has substantiated his status as a Veteran. He was notified of all other elements of the Dingess notice, including the disability-rating and effective-date elements of his claim, in the March 2008 letter. Although this notice was provided after the initial decision, the deficiency in the timing of this notice was remedied by readjudication of the issue on appeal in subsequent supplemental statements of the case. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA obtained the Veteran's service treatment records and all of the identified post-service private medical records as well as VA treatment records. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The most recent supplemental statement of the case issued in May 2012 showed that VA treatment records were considered by the RO up to May 2012. Although additional VA treatment records through August 2012 have been associated with the Veteran's virtual record, RO consideration of these records with respect to this issue is not necessary, as these records do not address the left shoulder disability. In the February 2008 remand, the Board directed the RO to obtain VA treatment records from May 2006 to the present and afford the Veteran a VA examination. The RO obtained additional VA treatment records from May 2006 to the present and requested that the Veteran provide information concerning treatment from private providers. Further, he was afforded a VA examination in May 2009. In the October 2011 remand, the Board directed the RO to send the claims file to the same examiner for clarification. An addendum was done in February 2012. The May 20009 examination report with February 2012 addendum included review of the claims file as well as clinical examination with opinion by an appropriately qualified healthcare provider, and, in turn, is adequate for adjudication purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, there has been substantial compliance with the Board's prior remands with respect to the issue of service connection for a left shoulder disability. See D'Aries v. Peake. An April 27, 2009 physical therapy sheet that included range of motion testing of both shoulders and was referred to in the May 2009 VA examination report has not been associated with the claims file. Nevertheless, this sheet is not relevant to the issue of service connection for the left shoulder as it does not address etiology, but rather only severity. As noted above, the claims file includes a sufficient May 2009 VA examination with February 2012 addendum that address the question of etiology. As the Board concedes below that the Veteran does currently suffer from a left shoulder disability, this document is not pertinent to this issue. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal with respect to a left shoulder disability is thus ready to be considered on the merits. II. Service Connection for Left Shoulder Disability Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection requires medical or in certain instances lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). In relevant part, 38 U.S.C.A. 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Federal Circuit has held that "[l]ay 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, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). Lay testimony is competent 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); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). 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). Service connection is also warranted for a disability, which is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. The Court has also held that service connection can be granted for a disability that is aggravated by a service-connected disability and that compensation can be paid for any additional impairment resulting from the service-connected disorder. Allen v. Brown, 7 Vet. App. 439 (1995). Effective October 10, 2006, 38 C.F.R. § 3.310(b) (2011) provides that VA will not concede aggravation of a nonservice-connected disease or injury by a service-connected disease or injury unless the baseline level of severity is established by medical evidence. The regulation further sets out the procedure for determining the extent of any aggravation. Because the Veteran's claim was pending prior to the regulatory changes and the changes could have prohibited retroactive effects, the Board is applying the old version of 38 C.F.R. § 3.310. See Rodriguez v. Peake, 511 F.3d 1147 (Fed. Cir. 2008). The Veteran has reported that he injured his left shoulder in service. In the alternative, he has asserted that his left shoulder disability is secondary to his right shoulder disability because he has had to compensate for his right shoulder disability by overusing his left shoulder. Although service treatment records show complaints related to numerous disorders, they are silent with respect to the left shoulder. A May 1978 service treatment record clearly shows that the Veteran injured his right shoulder, but is silent with respect any injury to the left. Significantly, a February 1979 service examination prior to discharge is silent with respect to any findings of a chronic left shoulder disability and showed that the upper extremeties were evaluated as clinically normal. Although the Veteran reported a painful or "trick" shoulder in his contemporaneous medical history, the physician's notes indicate that the Veteran was referring to his right collar bone. In a subsequent statement, the Veteran indicated that there were no changes in his medical condition since his last separation examination. Immediately following service in April 1979, the Veteran filed a claim for service connection for residuals of right shoulder dislocation that occurred in 1978. He was silent with respect to any problems concerning the left shoulder. A July 1979 VA examination showed that there was obvious laxity of the ligaments around the right sternal clavicular joint as compared to the "very stable" left sternoclavicular joint. The Veteran did not report any left shoulder pain or history of disability in that joint. VA treatment and examination records dated from September 1980 to August 1988 make no mention of a left shoulder disability. The first post service medical evidence of any complaints pertaining to the left shoulder is a May 1990 VA treatment record that reported a history of arthritis of both shoulders. There was no elaboration or reports of any diagnostic studies. At an August 1990 hearing before RO personnel, the Veteran reported that he was claiming additional benefits based on several disabilities, but the left shoulder was not mentioned. An August 1997 VA treatment record shows that the Veteran presented with right and left neck/shoulder pain. The assessment was multilevel cervical spondylosis and herniated nucleus pulposus. A VA X-ray study of the left shoulder was performed in June 1999, after the Veteran reported a struggle with a patient. No fracture or dislocation was demonstrated. VA treatment records dated in August 1999, show that the Veteran reported a recent injury to his left shoulder as the result of an altercation with a patient. An impression of likely impingement syndrome of the left shoulder was given. In August 2004, the Veteran was treated for tendonitis of his left shoulder. Subsequent medical records reflect continued medical care received for left shoulder pain. However, nothing in these records links these disabilities directly to service or to his service-connected right shoulder disability. At the May 2006 Board hearing, the Veteran testified that he believed that his left shoulder hurt because of overcompensation for his injured right shoulder. The Veteran was afforded a VA examination in May 2009. The claims file was reviewed. The Veteran reported that he had injured his left shoulder when he fell down the steps in the barracks in 1978. He indicated that he knocked his teeth out and went to sick call. The Veteran indicated that the focus of treatment was on his teeth and he did not receive any treatment for his left shoulder. Further, there were no X-rays to his recollection. The examiner diagnosed degenerative joint disease of the left shoulder and opined that this disability appeared to be non-military related, as the first mention of such a disability was in 1997. The examiner continued that the left shoulder disability appeared to be related to normal aging and repetitive use, given the extensive history of manual labor over his lifetime. The Veteran's occupational history was reviewed and showed that he primarily had jobs that required manual labor, including custodial work, fire hydrant repair, kitchen work, driving a tractor, working as an orderly, a nursing assistant and a custodian. Repetitive use of joints could result in arthritis and pain. The examiner also determined that it was not at least as likely as not that the Veteran's left shoulder degenerative joint disease was caused, or aggravated, by his service-connected right shoulder disability. The examiner rationalized that the Veteran reported an entirely different injury involving the left should that could not be substantiated in the records available as evidence. Based on the available evidence, it was reasonable to indicate that since the Veteran had done a significant amount of manual labor including his current occupation as a nursing assistant that he would eventually develop degenerative joint disease over time in the left upper extremity. Unfortunately, the examiner completed the rationale section by providing an incomplete sentence and did not adequately address whether the left shoulder disability was secondary to the right shoulder disability. A July 2009 VA MRI report includes a notation that there was a history of left shoulder pain since an injury in 1978. The impression was severe acromioclavicular osteoarthritis and lateral downsloping of the acromion process; supraspinatus and infraspinatus tendinosis and bursal sided fraying of the posterior supraspinatus; suspected superior labral tear and avulsion involving a small portion of the posterior labrum; glenohumeral degenerative changes with subchondral edema in the inferior aspect of the glenoid; evidence of scarring or chronic injury involving the inferior glenohumeral ligament; and intra-articular loose body. Follow up VA treatment records continued to show treatment for a left shoulder disability. A February 2012 VA MRI showed mild AC arthropathy; mild degenerative changes of the glenohumeral joint, which needed to be correlated with impingement series x-rays; deformity of the posterior rim of the glenoid and posterior labrum probably due to old trauma with minimal posterior subluxation humeral. Again, there is no indication in these records that the Veteran's left shoulder disability manifested in service or was secondary to his right shoulder disability. In a February 2012, addendum, the same VA examiner who conducted the May 2009 examination gave an opinion that it was not at least as likely as not that the Veteran's left shoulder disability was caused by or aggravated by his service-connected right shoulder disability and provided a detailed rationale. The examiner summarized the pertinent medical evidence of record and determined that the initial onset of the left shoulder condition was in 1997 and was non-military related. Further, when the left shoulder was referenced in the treatment records, it was always evaluated as a separate and independent condition. The examiner observed that there were no medical progress notes that documented or associated the left shoulder condition with the right shoulder condition. Further, there was no documentation of overuse or excessive use of the left shoulder or of the left upper extremity. It had not been documented by any medical provider that the Veteran was using his left upper extremity to compensate for his right. The examiner commented that the 2009 and 2012 MRIs suggested "old trauma," in part, along with normal ageing. Ageing was considered an etiology due to the delayed onset of the left shoulder disability. The medical evidence of record did not show a direct or indirect blow to the left shoulder, no treatment of the left shoulder in service, nor any residual left shoulder condition secondary to or aggravated by the right shoulder. Thus, there was no link or nexus that the examiner could find. The examiner again noted that the Veteran had a long history of manual labor and was currently working as nursing assistant, all of which required him to use both right and left upper extremities. The examiner also pointed out that the Veteran did not mention in the Social and Industrial Survey that the left shoulder was specifically limited or aggravated by the right shoulder. Analysis It is not in dispute that the Veteran has a current left shoulder disability. The MRI's, the Veteran's testimony and VA treatment and examination records document such a disability. Until relatively recently the Veteran had not reported any left shoulder injury in service. His initial reports of such an injury were recorded at the time of the 2009 MRI and VA examinations. While he is competent to report such an injury, his reports are not consistent with the history reported at the time of his separation from service, at the time of his initial claim for benefits, his initial VA examination or when treated for left shoulder complaints following the altercation with a patient in 1999. It is not credible to believe that the Veteran would have sought treatment for a right shoulder disability in service, but not mentioned an injury to the left; that he would have claimed service connection for the right shoulder injury without at the same time claiming the left, or that he would have repeatedly undergone treatment and examinations for a right shoulder disability without reporting the left shoulder symptoms he now claims he was experiencing. Given this history, including his own inconsistent statements, his reports of an in-service injury and a continuity of symptoms are not deemed credible. The first contemporaneous service evidence of any problems with the left shoulder was in May 1990, many years after his discharge from service, when a history of bilateral shoulder arthritis was provided. Nevertheless, this history appears to not have been based on competent x-ray evidence as subsequent 1999 X-rays showed that the left shoulder was normal. Importantly, the medical evidence shows that the Veteran primarily started seeking treatment for his left shoulder after an altercation with a patient at work in 1999. In sum the only evidence linking the current left shoulder disability directly to service consists of the Veteran's recent reports, which have been found not to be credible. The competent medical evidence of record, including service treatment records, is silent for any left shoulder injury in-service and does not show a continuity of symptomatology after service. The examiner who provided the May 2009 VA examination and February 2012 addendum determined that the Veteran's left shoulder disability was not related to service and provided a rationale for this opinion. Although the examiner did not fully take into account the Veteran's statements, this does not impair the value of the opinion, given that the statements were not credible. Absent competent and credible evidence, the Board must determine that the Veteran's left shoulder disability is not directly related to service. The Veteran's main contention has been that the left shoulder disability is secondary to the service connected right shoulder disability. In the February 2012 addendum, the VA examiner clearly found that the Veteran's left shoulder disability was not caused, or aggravated, by the right shoulder disability and offered a detailed rationale for this opinion, including the lack of documentation of overuse of the left upper, the demands of the Veteran's post-service employment, and the timing of the onset of the left shoulder disability in relation to the Veteran's age. There is no competent medical evidence of record to refute this opinion. While the Veteran can report certain symptoms pertaining to his left shoulder, it would require medical expertise to say that a left shoulder disability was caused or aggravated by the service-connected right shoulder disability as opposed to some other possible cause. Given that the Veteran is not shown to have medical expertise, the Board must find that he is not competent to give an opinion as to whether his left shoulder disability is secondary to his service-connected right shoulder disability. Only a medical professional could render such an opinion. In the instant case, the VA examiner unequivocally found that it was not secondary. As there is no competent evidence that the Veteran's left shoulder disability is proximately due to, or aggravated by his service-connected right shoulder disability, service connection is also not warranted under a secondary theory of entitlement. The preponderance of the evidence is against the claim for service connection for a left shoulder disability, under a direct and secondary basis. As the preponderance of the evidence weighs against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim is denied. See 38 U.S.C.A. § 5107(b). ORDER Service connection for left shoulder disability is denied. REMAND In the February 2008 remand, the Board directed the RO to obtain and associate with the claims file the Veteran's VA chapter 31 vocational rehabilitation folder. Unfortunately, this folder is not currently associated with the claims file. The folder could contain relevant information as to the severity of the right shoulder disability, and the effective date of the increased rating. The Veteran has a right to compliance with the Board's remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). As discussed above, the May 2009 VA examination report indicated that range of motion results were provided on an attached physical therapy sheet completed on April 27, 2009. This sheet has not been associated with the claims file. Given that this sheet may be relevant to the evaluation of the right shoulder disability, VA has a duty to associate it with the claims folder. In May 2012, the Director of Compensation and Pension Service (C&P) determined that extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) was not established. However, in light of the additional evidence, the claims file should be returned to the Director of C&P to determine whether the additional evidence alters the prior finding. Lastly, the issue of entitlement to an effective date earlier than April 14, 2005, for the grant of an increased rating of 40 percent for the service-connected right shoulder disability is inextricably intertwined with the claim for entitlement to an increased rating on an extraschedular basis. Accordingly, further consideration of this issue must be deferred at this time. Accordingly, the case is REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's VA chapter 31 vocational rehabilitation folder. 2. Obtain and associate with the claims file the April 27, 2009 VA physical therapy sheet providing range of motion testing for the right shoulder. 3. If additional records are obtained, refer the issue of extraschedular consideration for the right shoulder again to VA's Director of C&P to determine whether the additional evidence alters the prior May 2012 finding. 4. If any benefit sought on appeal remains denied, issue a supplemental statement of the case. Then return the case to the Board, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs