Citation Nr: 1302383 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 08-19 229 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a left shoulder disorder, claimed as secondary to service-connected impingement of the right shoulder. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1969 to November 1970. The Veteran also has unverified service in the Mississippi and Alabama Army National Guard. This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which denied service connection for a left shoulder disorder. This case was previously before the Board in April 2012, when the Board remanded the Veteran's claims for further evidentiary development. Specifically, the Board instructed the RO/AMC to provide the Veteran with an orthopedic/neurologic examination. The Veteran received such an examination in May 2012. As an initial matter, when the Board's remand orders are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In the instant case, the Board finds that there has been substantial compliance with its remand instructions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance.) FINDING OF FACT The weight of the probative evidence is against a finding that the Veteran's left shoulder disability is etiologically related to his active duty service or due to or aggravated by his service-connected right shoulder disability. (CONTINUED ON NEXT PAGE) CONCLUSION OF LAW The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The Board has given consideration to the VCAA, which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012). The VCAA also defines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it must notify the veteran 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 veteran is expected to provide. See 38 U.S.C.A. § 5103 (West 2002 & Supp. 2012); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) (noting that a letter from VA to the veteran that described evidence potentially helpful to the veteran but that did not specify the party responsible for obtaining such evidence did not meet the standard set forth in the VCAA). Such notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.326 (2012); Dingess v. Nicholson, 19 Vet. App. 473 (2006); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004). Prior to the initial adjudication of the Veteran's claim, a letter dated December 2006 was sent to the Veteran in accordance with the duty to notify provisions of the VCAA. See 38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Specifically, this letter informed the Veteran of information and evidence necessary to substantiate the claims, information and evidence that VA would seek to provide, information and evidence that the Veteran was expected to provide, and information regarding the process by which initial disability ratings and effective dates are established. The Board finds that the notice provisions of the VCAA have been fulfilled, and that no further notice is necessary. With respect to the duty to assist, VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). The Veteran's post-service private medical treatment records have been obtained, to the extent available. Pursuant to the Board's April 2012 Remand, the Veteran was provided with an examination of his left shoulder in May 2012. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the May 2012 examiner reviewed the Veteran's claims file and past medical history, recorded his current complaints, conducted an appropriate evaluation, and rendered an appropriate diagnosis and opinion consistent with the remainder of the evidence of record. The Board, therefore, concludes that this examination report is adequate for the purpose of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012) see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Neither the Veteran nor his representative has contested the adequacy of this examination. The Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). In his June 2008 substantive appeal, the Veteran requested a local hearing. A local hearing was scheduled for June 10, 2010. The Veteran failed to appear for that hearing. A postponement was neither requested nor granted. The Veteran has not asserted any good cause for missing the hearing or requested that it be re-scheduled. Under these circumstances, VA considers the hearing request to have been withdrawn. See 38 C.F.R. § 20.704 (2012). Thus, the duties to notify and assist have been met, and the Board will proceed to a decision. Service Connection The Veteran has claimed service connection for a left shoulder condition only on a secondary basis; that is, that he has a left shoulder condition that is connected to his service-connected right shoulder condition. Because the RO also considered direct service connection, however, the Board will also consider whether a left shoulder disability was incurred during active duty service or is secondary to service-connected disability. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310(a) (2012); see also Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the Board resolves the benefit of the doubt for each such issue in favor of the veteran. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012). The United States Court of Appeals for Veterans Claims (Court) has stated that a veteran need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail on a claim for benefits. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). Here, there is medical evidence of a current disability; the Veteran's May 2012 VA examination noted that the Veteran has left shoulder impingement. The weight of the evidence, however, does not support a conclusion that it was incurred in service or is related to service-connected disability. First, there is no evidence documenting symptoms or diagnoses of a left shoulder condition in service. As it pertains to secondary service connection the evidence of record in the instant case contains one nexus opinion: the May 2012 VA examiner's opinion. The examiner noted the Veteran's contention that he had first experienced left shoulder pain approximately two years before the examination while lifting heavy boxes. The Veteran underwent physical therapy, which offered little improvement of his condition. The examiner noted that the Veteran has degenerative arthritis of the left shoulder, and that the Veteran needed to avoid reaching his left arm above shoulder level. After a consideration of this evidence, the examiner concluded that it was less likely as not that the Veteran's left shoulder condition was caused by, resulted from, or aggravated by his service-connected right shoulder impingement. The examiner indicated that he was unable to find any references in the medical literature to support an opposite opinion. The Board finds this examination report to be highly probative because it addresses the etiology of the Veteran's current left shoulder condition following an examination of the Veteran and a review of the Veteran's claims file and pertinent medical history as presented by the Veteran. To the extent that the Veteran himself believes that his left shoulder condition is related to his right shoulder condition, the Board notes that the Veteran is competent to provide testimony concerning factual matters of which he has first-hand knowledge (i.e., experiencing shoulder pain). See Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Further, under certain circumstances, lay statements may support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Indeed, VA provided the Veteran with an orthopedic examination based on the competency of these observations. With this in mind, the Board has considered the Veteran's contentions in this regard. For example, the Veteran stated in his September 2006 claim that the limited movement of his service-connected right shoulder caused him to use his left shoulder "over 90 [percent] of the time." The Board has reviewed the evidence of record for any suggestion that his current left shoulder disability is related to his right shoulder disability, and it has not found any such suggestion. In this respect, there is no medical evidence that the Veteran has any over-use injury. Accordingly, with no support in the medical evidence of record that the Veteran's left shoulder disability is related to his right shoulder disability, the Board places little probative weight on the Veteran's lay opinion regarding the etiology of his condition. 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, however, is not applicable in this case because the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The preponderance of the competent and probative evidence of record indicates that the Veteran's left shoulder disability is not related to his military service. Accordingly, the third Wallin element, competent evidence of nexus, has not been satisfied, and the claim fails on that basis. The benefit sought on appeal is accordingly denied. ORDER Service connection for a left shoulder disorder, claimed as secondary to service-connected impingement of the right shoulder, is denied. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs