Citation Nr: 1300863 Decision Date: 01/09/13 Archive Date: 01/16/13 DOCKET NO. 12-19 117 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a left shoulder disability, to include arthritis. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from January 1954 to February 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. A review of the Virtual VA paperless claims processing system reveals additional VA treatment records from July 2012, but they are not pertinent to the present appeal. In his April 2012 Notice of Disagreement, the Veteran requested a video hearing. A May 2012 VA Form 21-0829 (Report of General Information) shows that the Veteran was contacted by a Decision Review Officer (DRO) by telephone. He was informed of the types of Board hearings that were available, as well as the opportunity to have a DRO hearing. He was informed that there was a DRO hearing backlog. The Veteran stated that "this conversation today satisfied his request for a DRO hearing," and that the DRO could proceed to make a decision on his case. Accordingly, the Board considers the Veteran's request for a hearing to be withdrawn and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d), (e) (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). FINDING OF FACT The preponderance of the evidence reflects the Veteran has not been shown to have a left shoulder disability that manifested in service or within one year thereafter, or a current left shoulder disability that is causally or etiologically related to his military service. CONCLUSION OF LAW The Veteran's left shoulder disability was not incurred or aggravated in service and may not be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in June 2010. This letter advised the Veteran of what evidence was required to substantiate his claim, and of his and VA's respective duties for obtaining evidence. The letter also provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), reports of post-service medical treatment, and the report of a VA examination conducted in April 2011. The examination was adequate because it was based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the record, and appropriate diagnostic tests. The examiner also provided a rationale for the opinion. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Service Connection Claim 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. § 1110; 38 C.F.R. § 3.303. 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 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). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran has been diagnosed with degenerative joint disease (DJD) of the left shoulder. The first element of a service connection claim is satisfied. Hickson, 12 Vet. App. at 253. His STRs show that in April 1960, he complained of left shoulder pain for one week and that he was diagnosed with bursitis. The second element of a service connection claim is satisfied. Id. The nexus requirement may be satisfied by evidence that a chronic disease subject to presumptive service connection (here, arthritis) manifested itself to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. In this case, presumptive service connection is not warranted because there is no evidence of record showing a diagnosis of arthritis within one year following the Veteran's separation from service in February 1980. In April 2011, the Veteran underwent a VA examination. He reported that his disability began in 1956 after a "service related exercise." After examining the Veteran and reviewing the record, the examiner concluded that the Veteran's DJD was not related to service. The examiner explained that the STRs showed multiple complaints of right shoulder pain but a left shoulder disease or injury could not be confirmed. The examiner noted that in April 1960 the Veteran was treated for left shoulder pain but did not conclude that this was the cause of the Veteran's arthritis. The negative medical opinion provides probative evidence against his claim. The Veteran's post-service medical records do not provide a nexus between his left shoulder DJD and his period of active service. Instead, they show that the Veteran was treated for left shoulder pain in May 2007 and tendonitis of the rotator cuff in February 2008, and that osteoarthritis of unspecified joints was consistently part of his medical problem list. Discussion of treatment options is not probative as to the cause or aggravation of the disorder. Morton v. Principi, 3 Vet. App. 508 (1992); Mingo v. Derwinski, 2 Vet. App. 51 (1992) (observing that evidence of the appellant's current condition is not generally relevant to the issue of service connection, absent some competent linkage to military service). The medical evidence of record does not provide a nexus between the Veteran's current left shoulder DJD and his period of active service. In a May 2012 statement, the Veteran asserted that his left shoulder pain began in 1957 and has persisted since then. The Veteran is competent to report observable symptoms such as pain. Layno v. Brown, 6 Vet. App. 465 (1994). To the extent that the Veteran believes he has had continuous symptoms of the same disability since service, the Board finds his statement to be credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). However, for the reasons discussed below, his lay assertion of continuity of symptoms is less probative than other evidence of record. The Veteran asserts that his left shoulder pain began in 1956 or 1957. His STRs show treatment for various maladies during that time. However, the contemporaneous medical records are negative for treatment of a left shoulder problem in 1956 and 1957. In a December 1958 report of medical history, the Veteran did not report a shoulder problem and none was noted by his examining physician. He responded "no" to the question of whether he had a painful or "trick" shoulder. The medical records contemporaneous to the period of reported onset of shoulder pain provide probative evidence against the claim. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (noting that contemporaneous evidence has greater probative value than history as reported by the Veteran). In April 1960, the Veteran complained of left shoulder pain that had persisted for one week. Upon examination, there was no point tenderness and he had good range of motion. He was diagnosed with bursitis and instructed to treat it with heat and massage. An x-ray was taken in conjunction with the examination and it revealed no bone or joint pathology. No follow up visits were documented. At his November 1970 periodic medical examination no left shoulder condition was noted. In his report of medical history, he again answered "no" to the question of whether he had a painful or "trick" shoulder. A December 1970 treatment report shows that he had chronic bursitis in the shoulder and knees. The physician did not specify which shoulder had bursitis. No left shoulder condition was noted at his October 1976 periodical examination. However, in his report of medical history he answered "yes" to the question of whether he had a painful or "trick" shoulder. The physician did not note a shoulder problem. At his October 1979 separation examination, a right shoulder condition was noted, along with pain in his right elbow, left ankle, both feet and low back. A left shoulder condition was not noted. In his October 1979 report of medical history for separation, the Veteran listed several conditions when describing his present state of health including pain in his low back and right shoulder. He did not report a left shoulder condition and none was noted by the examining physician. In November 1979 he underwent an additional examination where he reported recurrent low back, right shoulder, right elbow, left shin, left ankle, and bilateral foot pain. No left shoulder condition was reported or diagnosed. The Veteran's assertion of continuity of symptoms is contradicted by the STRS, which are, aside from one instance of left shoulder bursitis in April 1960, entirely devoid of any chronic left shoulder conditions. The Veteran's pre-separation physical examination and questionnaire are particularly probative both as to the Veteran's subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73(1997) (Observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Since that time, the Veteran's post-service treatment records do not show left shoulder complaints until May 2007, 27 years after his separation from service. Although not dispositive, a lengthy period without complaint or treatment is considered evidence that there has not been a continuity of symptomatology and weighs heavily against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Lastly, the Veteran reported to the April 2011 VA examiner that his condition "has existed since 1956." The Veteran's allegation has been investigated by competent medical examination and found not supportable. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). For these reasons, the Board finds that the Veteran's assertion of continuity of symptoms is not probative evidence in support of his claim. The medical and lay evidence of record does not satisfy the nexus element of a service connection claim. Since the preponderance of the evidence is against the claim, the provisions of 38 U. S. C. A. 5107(b) regarding reasonable doubt are not applicable, and his claim must be denied. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518, 519 (1996). ORDER Service connection for a left shoulder disability is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs