Citation Nr: 1301833 Decision Date: 01/16/13 Archive Date: 01/23/13 DOCKET NO. 09-08 039 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for a right shoulder strain, claimed as a right shoulder condition. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Tiffany Berry, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1968 to August 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). On November 18, 2010, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of this hearing is associated with the claims file. In April 2011, the Board remanded this claim for additional development and consideration. All requested development has been completed and the claim is once again before the Board. FINDING OF FACT The most probative evidence fails to link a current right shoulder disability to the Veteran's military service. CONCLUSION OF LAW The requirements for establishing service connection for a right shoulder disability have not been met. 38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act The Veterans Claims Assistance Act (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, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the appellant 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) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, a letter dated in May 2008 provided notice to the Veteran regarding what information and evidence was needed to substantiate his claim for service connection, including informing him of what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. This letter also advised the Veteran of the evidence needed to establish a disability rating and effective date for the claim on appeal. The case was last readjudicated in August 2012. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's service treatment records, service personnel records, VA treatment records and examination reports. Additionally, the prior remand instructions were substantially complied with. Instructions pertinent to the claim being decided included obtaining any additional outstanding Social Security Administration (SSA) records, VA treatment records, and providing a VA examination to determine the nature of the claimed condition and an opinion as to the relationship to service. In response, the Appeals Management Center (AMC) obtained VA treatment records and SSA records, which have been associated with the Veteran's claims file. Thereafter, the Veteran underwent a VA compensation examination in June 2011 and an opinion was provided. Thus, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). Finally, the Veteran provided relevant testimony during the hearing before the undersigned in November 2010. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the hearing officer who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). Here, the undersigned Veterans Law Judge identified the issue on appeal and solicited the Veteran to identify evidence relevant to the claim. The Veteran described the symptoms associated with his claimed condition. At the Board hearing, his testimony revealed the existence of possible outstanding treatment records, and the Board sought additional development concerning this. The Board also obtained SSA records and a VA examination. As such, the Board finds that the hearing discussion did not reveal any evidence that might be available, but was not associated with the claims file, other than medical evidence that was to be procured. As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate this claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran has been an active participant in the claims process by reporting for VA examinations, responding to notices, and submitting evidence and argument. Thus, the Veteran has been provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the claimant. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, supra; Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a Veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). The determination as to whether the requirements for entitlement to service connection are met is based on an analysis of all of the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a) (West 2002); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a) (2012). When there is an approximate balance of positive and negative evidence regarding a material issue, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. §§ 3.102, 4.3 (2012). If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. The Board has reviewed all the evidence in the Veteran's claims file, including review of his electronic virtual VA file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that he has a right shoulder condition manifested by pain and stiffness with limited range of motion that began during service when his air mattress deflated during the night causing him to sleep on the ground in temperatures approximately 40 degrees below zero. The Veteran stated that upon waking up, he experienced a toothache-like pain in his right shoulder that radiated to his back which lasted for about three months. In terms of an in-service injury or disease, the Veteran's service treatment records indicate that he sought treatment for arm and shoulder pain on a few occasions in January 1970 following the incident as described above. He was seen on January 15, 1970 complaining of a cramped shoulder after sleeping in a bag, but does not identify which shoulder. On January 17, 1970 he complained of muscle pain in the left biceps. On January 21, 1970 he was assessed with muscle strain. On January 24, 1970 he was assessed with bicipital tendonitis. On January 23, 1970 it was noted he was doing much better with his shoulder and physical examination was unremarkable. He separated from service in August 1970. In terms of post-service evidence of a disability, the earliest objective indication of a current right shoulder condition is in a May 2008 VA treatment record, at which time he complained of right shoulder stiffness. The report was dated after he filed his claim for service connection for this condition. In fact, a March 2004 VA treatment record specifically notes the Veteran denied any muscle or joint pain, stiffness, swelling, or arthritis in his extremities. In August 2008, the Veteran was scheduled for a VA compensation examination. At that time, X-ray findings of the right shoulder show the bones are normal with no signs of fracture or dislocation, joints spaces are within normal limits, and soft tissues are unremarkable. The examiner ultimately provided a diagnosis of right shoulder strain, limited range of motion compared to the left shoulder. However, the examiner was unable to provide an opinion as to the etiology of the Veteran's right shoulder condition without resort to mere speculation because of the gap in medical records. The examiner stated that there is no supporting documentation as to the chronicity and severity of the medical condition during and after leaving the military service and, therefore, he does not have sufficient information to provide an opinion. The Veteran has been receiving treatment at VA medical facilities since November 2001. However, as stated, it was not until May 2008 that the Veteran complained of right shoulder pain. Subsequent VA treatment records include X-ray and MRI findings, dated in November and December 2010, respectively. The November 2010 X-ray findings indicate early degenerative changes in the acromioclavicular and glenohumeral joints with no fracture or dislocation or abnormal soft tissue calcification. The December 2010 MRI results indicate there is significant partial-thickness tear of the supraspinatus tendon, and small partial-thickness undersurface tearing of the distal infraspinatus tendon. However, there was no evidence of subluxation, dislocation, or significant tear of the long head of the biceps tendon or glenoid labrum. A March 2011 VA treatment record notes the Veteran receives monthly pain medication for his right shoulder. No etiological opinions were provided. In June 2011, in compliance with the Board's April 2011 remand directives, the Veteran was again scheduled for a VA compensation examination. Upon physical examination, the examiner noted pain and a decreased speed and range of motion in the joint motion of the right shoulder; however, no subluxation, giving way, instability, or deformity. Arthritis was specifically excluded. The examiner provided diagnoses of tendon tears of supraspinatus and infraspinatus of the right shoulder. The examiner also concluded that the Veteran's right shoulder condition is less likely as not caused by or the result of the in-service treatment in 1970. By way of rationale, the examiner cited to the Veteran's normal right shoulder examination in 1970, and determined it was an acute and transitory disorder, i.e., not chronic. As this opinion was made after a review of the entire claims file and relevant history, including service treatment records, and the Veteran's report of suffering from right shoulder pain since service, and contains a clearly-stated rationale that is consistent with the available evidence, the Board has afforded the June 2011 VA opinion high probative value. There is no probative opinion contradictory to the June 2011 opinion. The Board notes that records from the SSA show the Veteran applied for benefits for unspecified osteoarthritis. He reported to the SSA examiner that he was in a lot of pain concerning his neck, back, and knees. In an additional record, dated May 2009, the Veteran's upper extremities were reported as normal. However, a subsequent document notes the decrease in range of motion of the right shoulder and a handwritten note indicates the Veteran's contention that this is a result of his military service. This handwritten note is clearly based on a history reported to the examiner by the Veteran, with no opinion as to the etiology of the right shoulder actually being provided by the examiner. A bare transcription of a lay history is not transformed into competent medical evidence merely because the transcriber is a health care professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995); see also Godfrey v. Brown, 8 Vet. App. 113, 121 (1995) (a medical opinion that is based on the veteran's recitation of medical history and unsupported by clinical findings is not probative). Thus, that medical report, to the extent it suggests a relationship between the Veteran's right shoulder disability and service, is entitled to no probative weight. The Board acknowledges the Veteran is competent to testify to experiencing pain associated with his right shoulder condition and its onset. However, to the extent that the Veteran himself believes that his current right shoulder condition is related to service, as a lay person, the Veteran has not shown that he has specialized training sufficient to render such an opinion. In this regard, the diagnosis and etiology of shoulder disabilities requires medical testing and expertise to determine. Accordingly, the Veteran's opinion as to the diagnosis or etiology of his current right shoulder condition is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Thus, the Board finds the VA medical opinions to be more probative than the Veteran's lay assertions. Moreover, to the extent the Veteran contends his right shoulder symptomatology has existed since service, the Board finds such contention is inconsistent with the medical evidence in the claims file. In this regard, the claims file contains VA treatment records dating from November 2001, but the first time he mentions any symptomatology related to his right shoulder is in 2008, after he filed his claim for compensation. Indeed, he denied complaints related to his upper extremities in March 2004. Thus, an assertion of continuity of symptomatology is simply not supported by the record, and his contentions to that effect are not credible. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). In any event, whether the symptoms the Veteran reportedly experienced in service or following service are in any way related to his current right shoulder condition is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the Veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). Ultimately, the Board finds the medical evidence to be of greater probative value than the Veteran's lay contentions regarding the onset of his current right shoulder condition and its relationship to service. In sum, the Board finds that the preponderance of the evidence indicates that the Veteran's right shoulder complaints in service were acute and resolved, and he did not have a chronic right shoulder condition during service or for many years thereafter. Further, the most probative evidence - offered by a VA physician in June 2011 - indicates that the Veteran's current right shoulder condition is not related to the right shoulder problems treated during military service. Accordingly, service connection for a right shoulder condition is not warranted. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER Entitlement to service connection for a right shoulder disability is denied. ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs