Citation Nr: 1300409 Decision Date: 01/04/13 Archive Date: 01/11/13 DOCKET NO. 09-46 721A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Louisville, Kentucky THE ISSUE Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Layton, Counsel INTRODUCTION The Veteran served on active duty from April 1954 to March 1962. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky, which denied service connection for a right shoulder condition. In April 2009, the Veteran submitted a notice of disagreement and subsequently perfected his appeal in December 2009. In a January 2011 decision, the Board denied service connection for a right shoulder disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In December 2011, the Court issued a memorandum decision, setting aside the January 2011 decision and remanding the issue of entitlement to service connection for a right shoulder disability to the Board. The appeal was returned to the Board for action consistent with the December 2011 Court remand. In May 2012, the Board remanded the claim to the RO, via the Appeals Management Center (AMC), for further development. In December 2012, the Veteran submitted additional evidence directly to the Board, with a waiver of initial RO consideration of the evidence. This evidence is accepted for inclusion in the record on appeal. See 38 C.F.R. §§ 20.800, 20.1304 (2012). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT The preponderance of the evidence is against finding that the Veteran has a right shoulder disability that was incurred in, aggravated by, or otherwise related to a disease, injury, or event in service. CONCLUSION OF LAW A right shoulder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Stegall Considerations As noted above, the Board remanded this claim for further development in May 2012. The Board specifically instructed the RO to schedule the Veteran for a VA compensation and pension examination. In June 2012, the requested VA examination was performed. His claim was subsequently readjudicated in a November 2012 supplemental statement of the case. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002). 38 C.F.R. § 3.159 (2012). See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In the instant case, the Veteran received notification prior to the initial unfavorable agency decision in November 2008. The RO's March and November 2008 notice letters advised the Veteran what information and evidence was needed to substantiate the claim decided herein and what information and evidence must be submitted by him, namely, any additional evidence and argument concerning the claimed condition and enough information for the RO to request records from the sources identified by the Veteran. He was specifically told that it was his responsibility to support the claim with appropriate evidence. The March 2008 letter also included notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). Finally the letters advised him what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2012). The Board observes that all post-service treatment records identified by the Veteran have been associated with the claims file. He has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2012); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). The RO learned that the Veteran's service treatment records (STRs) were presumed destroyed in the 1973 fire at the National Personnel Records Center (NPRC). In a case in which a claimant's service records are unavailable through no fault of his own, there is a heightened obligation for VA to assist the Veteran in the development of his claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); see also Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a Veteran in developing facts pertaining to his claim in a case in which service medical records are presumed destroyed includes the obligation to search for alternative medical records). In accordance with the aforementioned cases as well as Dixon v. Derwinski, 3 Vet. App. 261 (1992), the RO informed the Veteran in a November 2008 letter that it was experiencing difficulty in obtaining his STRs, and asked him to submit any evidence pertaining to his STRs to aid in reconstructing his medical records. The Veteran did not supply any additional information pertaining to his STRs. As noted above, a VA examination was provided in conjunction with the Veteran's service connection claim in June 2012. The examiner considered the Veteran's assertions, reviewed the available records, performed a thorough examination, and provided adequate reasons to support his given opinion. As such, the Board finds that the June 2012 VA examination report is adequate for rating purposes. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. In Timberlake v. Gober, 14 Vet. App. 122 (2000), the Court held, in pertinent part, that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. The Federal Circuit has also held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). 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). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). When a disorder is first diagnosed after service, service connection is warranted for that condition if the competent evidence shows it was incurred in service. 38 C.F.R. § 3.303(d). It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Veteran contends that he suffers from a right shoulder disability as a result of his active service. Specifically, he contends that he was injured in August 1956, which required his shoulder being reset by a field medical unit. He has also asserted that he dislocated his right shoulder a total of four times. Initially, the Board again observes the Veteran's service treatment records are unavailable for review. Also, the Veteran has reported that his family doctor and fellow servicemen who witnessed the initial injury have passed away. However, experiencing a shoulder dislocation is an event that is observable through the senses; as such, a shoulder dislocation can be reported by a layperson without medical training. Additionally, the Veteran's reports of dislocating his right shoulder while on active duty have been consistent throughout the record. Nothing within the record contradicts the Veteran's account of dislocating his right shoulder while on active duty. As such, the Veteran's competent and credible statements are sufficient to establish an injury to the right shoulder in service, notwithstanding there is no actual medical evidence that shows the Veteran suffered from a chronic disability of the right shoulder during service. Further, recent medical treatment records clearly show that the Veteran currently suffers from dislocation and a rotator cuff tear of the right shoulder. The remaining question, therefore, is whether there is evidence of a relationship between the current disability and service. In this case, the Veteran was afforded a VA compensation and pension examination in June 2012. The examiner recorded the Veteran's report of dislocating his right shoulder when he fell back on a tank while on active duty in 1955 or 1956. The examiner noted the Veteran's report of subsequent right shoulder dislocations and treatment. He additionally noted that the Veteran had undergone surgery on his right shoulder in 2001 after falling backwards off of a ladder. After performing an examination of the Veteran, the examiner gave a diagnosis of status post surgical repair of a right rotator cuff tear. After reviewing the available records and results of the examination, the VA examiner opined that the Veteran's current right shoulder disability was less likely than not incurred in or caused by his active duty, to specifically include the Veteran's in-service right shoulder injury. The examiner noted that the Veteran received a diagnosis of a chronic rotator cuff injury on an MRI taken in 1997; however, that was the first documentation of complaints referable to the Veteran's right shoulder. The examiner observed that there was nothing in the evidence of record to suggest, and the Veteran denied, any treatment for a right shoulder disability prior to the 1990s. As such, there was no chronicity of medical care from the Veteran's stated injury in the mid-1950s until 40 years later. The examiner remarked that a rotator cuff tear is quite symptomatic, and thus it was medically credible that the Veteran injured his shoulder in the 1990s and sought medical care, which was likely why the 1997 MRI was performed. The examiner specified that receiving no medical care prior to that time would imply that there was no rotator cuff tear prior to the 1990s injury, and the "chronic" finding on the MRI would be explained by a right shoulder rotator cuff tear sustained in or about 1997. The examiner explained that the injury in the 1990s was sufficient in and of itself to explain both the Veteran's seeking of medical care at that time and the later development and diagnosis of a chronic rotator cuff tear. The Board finds the opinion of the June 2012 VA examiner to be complete, well reasoned, and supported by the evidence of record. The examiner considered the Veteran's statements and considered them along with the other evidence of record. The examiner explained the likely reasoning behind the medical findings of record in connection with the Veteran's statements. As such, the Board finds the opinion of the June 2012 VA examiner to be highly persuasive. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran has submitted no competent medical nexus evidence contrary to the VA opinion. The Veteran has been accorded ample opportunity to furnish medical and other evidence in support of his claim; he has not done so. See 38 U.S.C.A. § 5107(a) (2012) (noting it is a claimant's responsibility to support a claim for VA benefits). Indeed, there is no competent evidence of record showing that the Veteran's right shoulder disability is related to service. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Duenas v. Principi, 18 Vet. App. 512, 520 (2004). The Board recognizes that lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, in this case, the question as to the diagnosis and etiology of the Veteran's right shoulder disability, is a medical question that is not capable of lay observation. It is not capable of lay observation because there are multiple possible etiologies; the Veteran has experienced more than one incident involving his right shoulder over the years. There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding the specific etiology of his current disability or to attribute his symptoms to a diagnosable disorder. See 38 C.F.R. § 3.159 (a)(1)(2012). While the Veteran is competent to report what he experienced, he is not competent to ascertain the diagnosis of or etiology of his current disability, as the causative factors for such are not readily subject to lay observation, and there are multiple right shoulder injuries of record. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). In this circumstance, the Board gives more weight to the VA examiner's opinion which was rendered by a licensed medical professional rather than a lay person. In addition, there is no credible evidence of continuity of symptomology since active service in the present case. The Board acknowledges the Veteran's assertion that he has suffered from a right shoulder condition continuously since service separation. However, as noted above, the evidence of record indicates that the Veteran fell from a ladder in September 2001, falling directly on his shoulder and requiring surgery and physical therapy. This is approximately 39 years since the Veteran separated from service; this significant lapse in time between the active service and the first evidence of a disability of the right shoulder weighs against the Veteran's claim. The Board may, and will, consider in its assessment of a service connection the passage of a lengthy period of time wherein the Veteran has not complained of the malady at issue. See Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); see also Forshey v. Principi, 284 F.3d 1335, 1358 (Feb. Cir. 2002) (en banc). Finally, the Board observes that the private medical records submitted by the Veteran reflect that, at no time while being treated in 2001 did the Veteran indicate he had suffered from a right shoulder condition for nearly 40 years prior to the September 2001 injury. Rather, his reported history dated onset of shoulder problems to the recent fall from a ladder which resulted in a rotator cuff injury. These records do not include any reference to a remote injury or that examination of the Veteran's right shoulder revealed any old injury. In sum, the Veteran's subsequent report that he had experienced "years of problems" is in conflict with his reports to medical providers in the course of receiving treatment. As such, the Board finds the Veteran's statements regarding continuity of symptomatology since service are not credible, and may not serve as a basis for awarding service connection. In sum, there is no competent medical evidence included in the record to support the Veteran's assertion that his current right shoulder disability is etiologically related to his active service. While the Board has accepted the Veteran's assertion of an in-service injury, his statements regarding a nearly 40 year history of a right shoulder condition have been found to be not credible. Further, the Board again observes the record indicates the Veteran suffered a significant right shoulder injury in September 2001 after falling off a ladder, which was nearly 40 years following the Veteran's separation from service. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a right shoulder disability, and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002). ORDER Service connection for a right shoulder disability is denied. ____________________________________________ J. K. BARONE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs