Citation Nr: 1306979 Decision Date: 02/28/13 Archive Date: 03/01/13 DOCKET NO. 05-04 817 ) 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 disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant, spouse, and friend ATTORNEY FOR THE BOARD A. Cryan, Counsel INTRODUCTION The Veteran served on active duty from July 1963 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a hearing before the Board in February 2012. In an April 2012 decision and remand, the Board reopened the Veteran's claim of entitlement to service connection for a right shoulder disability and remanded the claim for additional development. In the April 2012 decision, the Board also remanded a claim of entitlement to service connection for a left knee disability and reopened and remanded a claim of entitlement to service connection for a right knee disability. Service connection was granted for left and right knee disabilities in an October 2012 rating decision. Therefore, those issues are not before the Board. Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). FINDING OF FACT The Veteran does not have a right shoulder disability which is attributable to active duty service. CONCLUSION OF LAW The Veteran's right shoulder disability is not the result of disease or injury incurred in or aggravated during active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim. The notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004). If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice. Shinseki v. Sanders, 129 S.Ct. 1696 (2009). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in letters dated in October 2003, January 2004, March 2004, February 2005, January 2010, and April 2012. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the October 2012 supplemental statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained an examination with respect to the claim. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). In the alternative, where evidence, regardless of its date, shows that a Veteran had a chronic condition in service, or during an applicable presumptive period, and still has that condition, service connection can be granted for that chronic disability. The evidence must be medical unless it relates to a condition where lay observation is competent. 38 C.F.R. § 3.303(b) (2012). If chronicity is not applicable, service connection may still be established if the condition is noted during service or during an applicable presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). The Veteran's service treatment reports reflect that the Veteran was seen for a report of right shoulder pain on abduction in January 1972. He was assessed with right shoulder tendonitis at that time. At a January 1972 medical board examination, clinical evaluation of the upper extremities was normal. On a January 1972 report of medical history form prepared in conjunction with the medical board examination, the Veteran indicated that he had a shoulder problem diagnosed as tendonitis. At an August 1972 VA examination, the Veteran was noted to have full range of motion of the shoulders with no abnormalities present. The Veteran did not report any complaints related to his right shoulder at orthopedic examinations performed at VA in May 1973 and December 2003. Private treatment reports from Columbia Medical Center Daytona reflect a report of pain in the right shoulder in July 1997. The Veteran was noted to have problems for some time and he was assessed with a torn rotator cuff of the right shoulder. Private treatment reports from Atlantic Orthopaedics dated from September 1998 to January 1999 reflect reports of pain in both shoulders in September 1998. X-rays of the right shoulder revealed evidence of a rotator cuff repair with bone anchors for the rotator cuff suture in good position. The Veteran was assessed with bilateral shoulder repairs with no evidence of impingement of the right shoulder. Private treatment reports from Orthopaedic Clinic of Daytona Beach dated from March 2002 to March 2004 reflect reports of bilateral shoulder pain left greater than right in March 2002. The Veteran was noted to have undergone bilateral shoulder rotator cuff repairs in the past. X-rays of the right shoulder obtained in December 2001 were noted to reveal four mitec anchors with good preservation of acromiohumeral distance. The Veteran was assessed with bilateral shoulder impingement syndrome, probable recurrent rotator cuff tears. The records reflect continued complaints of pain in the bilateral shoulders and he was assessed with bilateral shoulder full thickness rotator cuff tears. VA outpatient treatment reports dated from July 2004 to April 2012 reflect that the Veteran was noted to be scheduled for another surgery for his right shoulder in December 2004. In April and May 2011, the Veteran reported arthralgic pain related to degenerative joint disease in his shoulders. The records otherwise reflect a past medical history of right shoulder injury with surgeries of the right shoulder. In a January 2007 medical statement, J. Shoemaker, D.O., assessed the Veteran with osteoarthritis of the bilateral shoulders. A July 2007 VA examination performed for the purpose of examining the Veteran's spine and the need for aid and attendance did not include any findings related to the Veteran's right shoulder. The Veteran reported bilateral shoulder impingement syndrome in February 2010 at Orthopaedic Clinic of Daytona Beach. He was noted to have undergone a right shoulder Neer decompression with repair of rotator cuff in December 2004. An October 2011 VA examination performed for the purpose of determining the Veteran's need for aid and attendance did not include any findings related to the Veteran's right shoulder. At a February 2012 hearing before the Board, the Veteran testified that he believed his right shoulder disability resulted from performing repetitive motions in service. Specifically, he reported that while serving as a tank driver in service, he had to take the ammunition out and lay it on the ground and perform inspections. He stated that he had to push shells up the hatch and slid the gun into the turret in the close confines of the tank and his shoulder got worse after doing these motions consistently. The Veteran testified that he sought treatment for his shoulder once or twice in service and he began to notice problems with his shoulder shortly after service. The Veteran's friend testified that the Veteran had shoulder pain for a long time and had mentioned the types of activities he performed in service as a tanker. The friend indicated that he was also in service and that it was not uncommon for tankers to suffer from conditions such as the Veteran's shoulder problem. The Veteran's spouse testified that she knew about the Veteran's shoulder problem since 1981 when she married the Veteran. At a June 2012 VA examination, the Veteran reported right shoulder the onset of right shoulder pain in service due to heavy lifting and twisting. He noted improvement until he underwent surgery in the 1990s. Following a review of the claims file and clinical evaluation, including review of x-rays, the examiner diagnosed the Veteran with degenerative arthritis and right shoulder rotator cuff tear status post repair. The examiner opined that the right shoulder disability was less likely than not caused by or as a result of the Veteran's right shoulder tendonitis in service. The rationale for the opinion is that there was one entry in the service treatment reports indicating right shoulder tendonitis and no recurrence or chronicity and no indication of right shoulder complaints in the post-service medical records immediately following separation from service and that no medical chronicity of the tendonitis is established. In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for a right shoulder disability. The Board acknowledges that the Veteran is competent to report that he experienced right shoulder pain shortly after service. Barr v. Nicholson, 21 Vet. App. 303 (2007) (lay testimony is competent to establish the presence of observable symptomatology); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009). However, the Veteran's opinion that his right shoulder disability is related to his active duty service is insufficient to provide the requisite etiology of the current right shoulder disability because such matters require medical expertise. 38 C.F.R. § 3.159(a)(1) (2012); Duenas v. Principi, 18 Vet. App. 512 (2004) (layperson is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms); Bostain v. West, 11 Vet. App. 124 (1998); Stadin v. Brown, 8 Vet. App. 280 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, his statements regarding his right shoulder disability being related to his active duty service are not competent as he is not medically qualified to provide evidence on a matter requiring medical expertise, such as an opinion as to etiology. The only medical opinion of record, that of the June 2012 VA examiner, found that it was less likely than not that the Veteran's current right shoulder disability was caused by or as a result of the Veteran's active duty service including treatment for tendonitis in service. That opinion is more probative as to the etiology of the Veteran's right shoulder disability as the examiner reviewed the entire claims file and provided a rationale to support the opinion based on that examiner's medical training and expertise. Additionally, the Veteran has not submitted any competent evidence which provides a basis for the conclusion that arthritis manifested within one year of his separation from service. 38 C.F.R. §§ 3.307, 3.309 (2012). Consequently, the Board finds that service connection is not warranted because the preponderance of the medical evidence of record is against a finding that a right shoulder disability is etiologically linked to the Veteran's active duty service. Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a right shoulder disability and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a right shoulder disability is denied. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs