Citation Nr: 1304772 Decision Date: 02/08/13 Archive Date: 02/19/13 DOCKET NO. 05-14 015A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a right shoulder disorder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1972 to July 1976. This case comes before the Board of Veterans' Appeals (Board) on appeal from a September 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Washington, DC. Jurisdiction over the case was subsequently transferred to the RO in Roanoke, Virginia. When this case was most recently before the Board in June 2012, it was remanded for additional development. The case has since been returned to the Board for further appellate action. The Veteran was scheduled for a Board hearing at the Central Office in August 2010. He failed to report for the scheduled hearing without explanation. He has not requested that the hearing be rescheduled. Therefore, his request for a Board hearing is deemed to be withdrawn. See 38 C.F.R. § 20.704 (2012). The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims processing system (Virtual VA) electronic file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issue decided herein. FINDING OF FACT A right shoulder disorder, to include osteoarthritis with probable impingement syndrome, did not manifest in service or within one year of separation and is not related to any period of active duty. CONCLUSION OF LAW A right shoulder disorder was not incurred in or aggravated by service, and arthritis was not manifest to a compensable degree within one year of separation. 38 U.S.C.A. § 1101, 1110, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record: (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice should be provided prior to an initial unfavorable RO decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (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. This notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The Veteran was provided with required VCAA notice in an October 2003 letter, prior to the initial adjudication of the claim in September 2004. However, the Veteran was not provided with the required Dingess/Hartman notice until December 2008. Nonetheless, the claim was then readjudicated in multiple supplemental statements of the case thereafter, the most recent in December 2012, curing any timing deficiency in this regard. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007). The VCAA also requires VA to make reasonable efforts to assist the claimant 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 claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record reflects that all pertinent available service treatment records (STRs) and all available post-service medical evidence identified by the Veteran have been obtained. In response to the Board's June 2012 remand, the Appeals Management Center (AMC) sent a letter to the Veteran in June 2012 requesting that he identify and provide completed authorization forms for all health care providers that have treated him for his right shoulder, to include Howard University Hospital and Providence Hospital, as reported during his November 2010 VA examination. The letter included a blank VA Form 21-4142, Authorization and Consent to Release Information. A review of the file indicates that the Veteran did not return completed authorization forms to allow the AMC to obtain these records. As such, the Board finds that the AMC fulfilled the duty to assist in this regard. The Veteran's written statements are also of record. In November 2009, the Veteran participated in an informal conference with the Decision Review Officer (DRO). The Veteran was also afforded an opportunity to present testimony at a Central Office hearing before the Board in August 2010 but failed to appear without explanation and did not request the rescheduling of the hearing. The Veteran has not identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence. In addition, the Veteran was afforded an appropriate VA examination in connection with his claim. The Board finds that the examination was adequate, in that the exam was conducted by a medical professional who reviewed the claims file, solicited history from the Veteran, and performed a thorough examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (noting that even if not statutorily obligated to do so, if VA provides the veteran with an examination in a service connection claim, the examination must be adequate); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). A second examiner provided an addendum opinion to the VA examination in response to the June 2012 Board remand. The Board has reviewed both reports and finds that, when taken together, these opinions provide adequate medical evidence to decide the claim; the complete opinion also substantially complies with the requirements articulated in the previous remand requests. See D'Aries v. Peake, 22 Vet. App. 97 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In sum, the Board finds that VA has complied with its duty to assist the Veteran. Based on the foregoing, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. Bernard v. Brown, 4 Vet. App. 384 (1993). Legal Principles Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 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). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis The Veteran contends that he currently suffers from a right shoulder disorder manifested by bursitis which had its onset in service. A review of the Veteran's service treatment records shows no in-service complaints, treatment, or diagnosis of right shoulder bursitis, arthritis, or another right shoulder disorder. On examination at separation in June 1976, the upper extremities and musculoskeletal system were found to be "normal." In August 1976, the Veteran filed his original claim for VA benefits. His only claimed disabilities were migraine headaches and an upper left leg injury. In his May 2003 claim, the Veteran listed bursitis but did not indicate when the disorder began. In a December 2003 written statement, the Veteran indicated that the bursitis was in multiple body parts, to include his right shoulder. A review of the post-service medical history shows the first indication of a right shoulder disorder in June 1996, with a notation of right shoulder bursitis in the past medical history section of a private treatment record. A November 2003 private treatment record shows the Veteran reported that he sustained a fall, with injuries to his right shoulder, back, and leg. A December 2003 private treatment record shows that the Veteran was seen for treatment following an on-the-job injury in his position as a heavy equipment operator the previous month. He reported right shoulder pain, which was exacerbated with overhead activities. Following physical examination, he was diagnosed with right shoulder impingement syndrome. The physician noted that he explained the nature of the Veteran's right shoulder pain and recommended that he not return to heavy equipment operating until his symptoms resolved. He was placed on a physical therapy program and medication. A February 2004 private treatment record shows a continued diagnosis of right shoulder impingement syndrome/symptomatically improving. On the day of a planned videoconference with the DRO in November 2009, the videoconferencing equipment was not functioning correctly. However, the Veteran, his representative, and the DRO spoke via telephone on speaker. The Veteran and his representative requested not to go on the record, but to present evidence informally. The summary memorandum from the informal conference shows that the Veteran clarified that the claim for bursitis was limited to the right shoulder. In response to the Board's October 2010 remand, the Veteran was afforded a VA examination in November 2010, in which he reported an onset of bilateral shoulder pathology beginning in 1992. He reported pain that began insidiously in his shoulders while driving a bus. He tried to lift an item that suddenly fell and "jerked" his shoulder. His pain was progressively worse over time, and he attempted to manage it with over-the-counter medications. He later obtained multiple steroid injections to each shoulder for pain control, which managed pain well until a 2004 car accident, which caused the pain to return. The examiner noted a history of trauma to the joints as the fall at work and car accident detailed in the problem summary section of the report. Following examination, the examiner diagnosed right shoulder osteoarthritis with probable impingement syndrome and opined that it was less likely as not that the right shoulder bursitis was caused by or a result of the Veteran's active service. As rationale, the examiner provided that while the Veteran's history and examination do reveal right shoulder internal pathology, the claim for bursitis could not be definitively substantiated on the basis of clinical examination alone and imaging does not reveal suggestive changes such as calcification in the bursa or along the tendon. There was radiographical evidence of degenerative arthritis consistent with chronic internal shoulder derangement of the shoulder that may or may not be a bursitis, but there was not enough evidence to definitively link this pathology to his military service. In a May 2012 written brief, the Veteran's representative asserted that the Veteran's right shoulder bursitis manifested in service, noting the initial injury where he was driving a bus and trying to catch an object that fell. In response to the Board's June 2012 remand, an addendum opinion was obtained to the November 2010 examination from another VA examiner that reviewed the original examination report and claims file. In the July 2012 addendum opinion, the examiner stated that the Veteran's currently diagnosed right shoulder disorder was degenerative disease (listed as osteoarthritis in the original report), which can be traced back to the clearly reported 1992 injury where the Veteran subluxed his right shoulder lifting a heavy item. For the purposes of the opinion, the examiner presumed that the Veteran credibly reported an in-service incurrence of right shoulder bursitis, noting that this inflammation of the shoulder bursa is most commonly caused by repetitive injury to the supraspinatus tendon, sometimes becoming a chronic condition, particularly if the shoulder is not given chance to rest. However, with rest and decrease use of the shoulder joint (such as a change in employment where there is less physical stress on the shoulder), the disorder is expected to improve and resolve completely. With this framework, the examiner opined that it is less likely than not that the Veteran's current degenerative disease was incurred in or caused by the claimed in-service injury, event, or illness, as shoulder degenerative disease is caused by wear and tear of the shoulder joint, not by bursitis, although the two can coincide. The examiner further explained that such wear and tear of the shoulder joint occurs with natural aging, and can be hastened by trauma - here, aggravated by injuries in 1992 and 2004; she could not think of any medical explanation to link the current disorder to the report of in-service bursitis. Upon careful review of the record, the Board finds that service connection for a right shoulder disorder is not warranted. The Veteran does have a current diagnosis of degenerative disease/osteoarthritis with probable impingement syndrome. Furthermore, the Board finds the Veteran's report of the in-service bursitis credible, as explained in greater detail below. However, the evidence of record does not establish a finding of continuity of symptomatology since service. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (2007); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006). The Veteran is certainly competent to report as to the symptoms he experiences, such as pain, and their history. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan, supra. Moreover, symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Savage, supra, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). The Board may weigh the absence of contemporaneous medical evidence as a factor in determining credibility of lay evidence, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan, supra. At this juncture, the Board notes that the evidence of record regarding the claimed in-service injury or event resulting in bursitis is unclear. In this regard, the Veteran's written submissions of record are silent as to the in-service circumstances of the in-service event or injury. His May 2003 claim and December 2003 written statement, as well as the subsequent notice of disagreement, and substantive appeal (VA Form 9) only list the claimed disorder or disagreement with the RO decision without further explanation. The submitted private treatment records show a past medical history of right shoulder bursitis in June 1996 (20 years after service) without a showing of a subjective history from the Veteran or other supporting evidence in this regard. The one report of record from the Veteran about the description of the circumstances and initial manifestation of the disease or injury is from the Veteran's report during the January 2010 VA examination, in which he reported pain beginning insidiously while driving a bus. The report then states that he went to lift an item then suddenly fell and jerked his shoulder. The reported date of onset was noted as approximately 1992, and the history of trauma was noted as a "fall at work and car accident detailed in problem summary," both post-service events. At best, it appears that the pain that started while driving a bus during service could be related to the onset of in-service bursitis. In this case, the Board notes that the Veteran was provided multiple opportunities to assist in the development of his claim, to include the submission of additional medical or lay evidence supporting any contentions, or to authorizing VA to obtain supporting medical evidence, such as the reported treatment at Howard University and Providence Hospitals. He was also provided an opportunity to present evidence informally to the DRO, as well as to provide testimony at a Board hearing for which he did not appear. See 38 C.F.R. §§ 3.159(c)(1)(i), (ii) (requiring claimant to cooperate fully with VA's efforts to obtain non-federal records, including providing identifying information and authorization to release information); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). Nonetheless, in light of the representative's May 2012 written brief alleging an in-service bus injury resulting in bursitis, and to the extent the Veteran alleged continuity of symptomatology otherwise in the record, the Board remanded the case to consider these contentions. The July 2012 addendum opinion did presume the Veteran credibly reported the onset of in-service bursitis for the purposes of an etiology opinion to fully address these contentions. The examiner found that even if the Veteran had developed bursitis during service, the current right shoulder diagnosis was related to natural aging, coupled with post-service injuries years later as reported by the Veteran. As such, while the Board finds that the Veteran's report of an in-service injury or event resulting in an onset of bursitis is credible in this case, to the extent that he reported that he complained of residual difficulties thereafter during the remainder of his service, such a statement is inconsistent with the normal findings on examination at separation in June 1976. Thus, to the extent the Veteran asserts an in-service onset of symptomatology of a residual right shoulder disorder, he is not credible. Moreover, the Veteran's statements of record do not establish a consistent report of symptomatology to establish continuity since service. In this regard, he filed his original VA compensation claim for migraines and a left leg injury in August 1976, several days after separation from service. His May 2003 claim was the first instance in which he requested service connection for bursitis of the right shoulder, among other body parts, nearly 27 years after separation; there is also no date provided for the claimed beginning of the disorder or symptoms. Moreover, the first documentation of right shoulder symptoms following service in private treatment records is in June 1996 (nearly 20 years after service); this record is silent as to any further notation of past treatment or complaints. To the extent the Veteran alleges continuous pain since service due to the right shoulder, the record as explained above weighs against his credibility in this regard. In addition, while the Veteran reported right shoulder pain as shown in a December 2003 private treatment record, this was associated with his work-related injury from the previous month. Given these inconsistencies, when taken together, the Board finds that the Veteran's statements are not credible evidence to establish in-service onset or continuity of symptomatology of a right shoulder disorder since separation from service. Again, while in-service bursitis is acknowledged, the Veteran provided a history to the VA examiner that noted a current pathology beginning in 1992 and any allegation of prior continuity is not credible. Moreover, there is no competent and credible evidence of record otherwise linking the Veteran's current right shoulder disorder to his active service. The medical evidence of record does not support the contention that his current degenerative disease/osteoarthritis is related to his active service. The portion of the October 2010 VA examination diagnosis lists probable impingement syndrome as well; the Board notes that the evidence of record shows this diagnosis for the first time in November 2003 private treatment records, following treatment for an injury at work that same month. While private treatment records show a past medical history of right shoulder bursitis (June 1996) and the diagnosis of right shoulder impingement sydrome during the period of the claim, these records do not provide a nexus opinion linking those disorders or the current diagnosis, first diagnosed at the October 2010 VA examination, to service, to include an in-service injury. Rather, the only opinion on the matter is the one provided in the July 2012 addendum, based on the October 2010 VA examination report, which weighs against the claim. The Board finds that this opinion is competent and highly probative, as both examiners reviewed the claims file, and the October 2010 examiner took a history from the Veteran, to include his report of previous injuries, to the extent he provided such a history. With the available information, the July 2012 examiner concluded that the Veteran's current right shoulder disorder was less likely than not related to service. Likewise, there is no competent and credible evidence of record showing the manifestation of arthritis to a compensable degree within one year of separation from service. In fact, as noted above, the medical evidence reveals that the Veteran was not diagnosed with osteoarthritis until 2010 - nearly 34 years following service. The Veteran has not otherwise alleged that he was diagnosed with arthritis at an earlier date. Thus, service connection is not warranted on a presumptive basis. In the absence of any credible evidence of arthritis of the right shoulder manifested to a compensable degree within one year of separation, or a relationship between the Veteran's current complaints of right shoulder symptoms and his service, all elements of service connection cannot be met. Coburn, supra. The Board concludes that the preponderance of the evidence is against a finding for service connection for a right shoulder disorder. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, supra. ORDER Entitlement to service connection for a right shoulder disorder is denied. _________________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs