Citation Nr: 1307034 Decision Date: 03/01/13 Archive Date: 03/11/13 DOCKET NO. 10-41 097 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for a left shoulder disorder. REPRESENTATION Veteran represented by: Military Order of the Purple Heart of the U.S.A. ATTORNEY FOR THE BOARD L. Edwards, Associate Counsel INTRODUCTION The Veteran had active service from August 1967 to June 1974. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran submitted a timely notice of disagreement in March 2010, a statement of the case was issued in August 2010, and a VA Form 9 was submitted in September 2010. FINDING OF FACT The Veteran's left shoulder disorder is not causally or etiologically due to service. CONCLUSION OF LAW Service connection for a left shoulder disorder is not established. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), the Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012). Under the VCAA, when VA receives a claim, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim; that VA will seeks to provide; and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the regional office. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice requirements of the VCAA apply to all five 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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, 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. Id. at 486. In the present case, the VCAA duty to notify was satisfied by a letter sent to the Veteran in March 2009 that fully addressed the entire notice element and was sent prior to the initial regional office decision in this matter. The letter informed him of what evidence was required to substantiate his claim and of his and the VA's respective duties for obtaining evidence. In any event, in his statements the Veteran demonstrated his actual knowledge of the elements necessary to substantiate his claim. See Short Bear v. Nicholson, 19 Vet. App. 341, 344 (2005). There is no allegation from the Veteran that he has any evidence in his possession that is needed for full and fair adjudication of these claims, and the Board finds that the notification requirements of the VCAA have been satisfied as to timing and content. To fulfill Dingess requirements, in March 2009, the regional office provided the Veteran with notice as to what type of information and evidence was needed to establish a disability rating and the possible effective date of the benefits. The regional office successfully completed the notice requirements with respect to the issue on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Additionally, VA has a duty to assist the Veteran in claim development. This includes assisting in the procurement of service treatment and hospitalization records and pertinent medical records, as well as providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In this case, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The regional office has obtained service treatment records, VA outpatient medical records, private medical records, and a VA medical opinion and examination pertinent to the issue on appeal. Virtual VA records have been reviewed. Therefore, the available medical evidence and records have been obtained in order to make an adequate determination. Neither the Veteran nor his representative has identified any additional existing evidence that has not been obtained or is necessary for a fair adjudication of the claim. The VA's duty to assist in the development of the claim is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. Smith v. Gober, 14 Vet. App. 227 (2000), Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Entitlement to Service Connection for a Left Shoulder Disorder The Veteran seeks entitlement to service connection for a left shoulder disorder. He asserts he injured his shoulder during service and continues to experience shoulder pain. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (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 evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Additionally, where a Veteran served 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 of 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. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009. A layperson is competent to identify a medical condition where the condition may be diagnosed by its unique and readily identifiable features. Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Additionally, where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Charles v. Principi, 16 Vet. App 370, 374 (2002). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of psychiatric, respiratory, or orthopedic disorders. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Veteran's service records were reviewed. His enlistment examination from July 1967 did not note any left shoulder abnormalities. Treatment records indicate the Veteran sought treatment in September 1968 for hurting his left shoulder while playing football. The Veteran reported that he could not lift his left arm. Examination revealed a full range of motion with tenderness on extreme movement in all directions. An x-ray was within normal limits. He was diagnosed with a muscle sprain, no dislocation. The next day, he went to the orthopedic clinic. It was noted that the Veteran had an incomplete tear of "P Major Muscle L" (left pectoralis major muscle). The Veteran failed to go to an additional orthopedic appointment approximately a week later. There were no subsequent complaints or treatment for the Veteran's left shoulder noted during service. Post-service records were reviewed. Private records indicate the Veteran sought treatment in December 2007 for left shoulder pain. He reported that he was injured in a bar brawl that month, when someone pulled his left shoulder from behind and put it behind his back forcefully. He reported an onset of acute pain at the time of injury and denied any past history of shoulder problems. Examination revealed the Veteran had a possible cuff tear and it was recommended that a magnetic resonance image (MRI) be conducted to rule out an acute tear. The MRI demonstrated a massive tear with retraction. In March 2008, the Veteran underwent surgery to repair the rotator cuff tear. The Veteran returned in April 2008 and reported that his symptoms were improving and his pain was lessening. He also started physical therapy. A report from June 2008 indicated that the Veteran's wounds were healed and his motion was markedly improved. Treatment notes from August 2008 reported that the Veteran was delighted with the results from his surgery. Subsequently, in January 2009, the Veteran returned complaining of increased pain in the left shoulder and that he questioned whether his current left rotator cuff problem and recent surgery were related to an injury to the shoulder that he sustained during service. It was noted that the Veteran would bring his medical records from the military to see if there was a connection with his rotator cuff tear. The Veteran was afforded a VA examination in April 2010. The Veteran reported having left shoulder problems while in the military, including an injury while playing football and an additional injury after falling down stairs. The Veteran stated that his left shoulder pain initially began as a slow, gradual process, but there was an acute worsening when he fell down the stairs. He reported residual pain ever since and denied injuries to the left shoulder since military discharge. X-rays demonstrated degenerative joint disease of the left glenohumeral joint and a calcific tendinitis with previous postop changes in the left AC joint. The Veteran was diagnosed with left shoulder impingement syndrome and degenerative joint disease of the left shoulder. A VA medical opinion was obtained in August 2010. The examiner noted that during the April 2010 examination, the Veteran denied having any injuries to his left shoulder since military discharge; however, upon reviewing the claims file, evidence indicates that the Veteran injured his left shoulder during a bar brawl in December 2007. The examiner stated that it is clear that the Veteran's left shoulder disorder is secondary to the trauma that occurred after military discharge - from the brawl in December 2007. The examiner noted that the Veteran had shoulder pain in the late 1960s during service, which appeared to be essentially an isolated complaint. Continuing, the examiner explained that the most recent injury was significant and required surgery several months later. The examiner stated it is clear that the Veteran's left shoulder disorder is related to the post-military injury which occurred in December 2007; therefore, the examiner opined that it is less likely than not that the Veteran's shoulder disorder is related to the isolated complaint of left shoulder pain during service. The Veteran's chiropractor submitted a statement in April 2011 reporting that the Veteran has been treated for complaints of left shoulder pain, soreness and discomfort resulting from arthritis in the gleno-humeral joint, past left rotator cuff surgery and past injury to the left shoulder. No medical opinion was provided regarding the etiology of the Veteran's current left shoulder disorder. The Veteran's wife submitted a letter in May 2011, stating that the Veteran has complained about pain in his left shoulder for thirty-six years. The Veteran's wife reported that she has attempted to help him with his pain by manipulating his shoulder joint and providing shoulder massages. The Board notes that aside from the acute injury during service, there were no chronic residuals noted in the Veteran's service records or post-service records until the bar brawl in December 2007. Additionally, although the Veteran claimed more than 32 disorders in October 2006, at the time he did not claim a left shoulder injury. Furthermore, the Veteran reported in a December 2007 treatment note that he had no history of left shoulder problems. The Board finds this evidence weighs against the Veteran's claim. The Veteran's lay statements and statements of his spouse, a veterinarian, in support of his claim have been considered. The Board notes that the Veteran is competent to comment on any symptoms, such as pain. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Board finds that while the Veteran clearly believes that he has a left shoulder disorder as a result of his injury during service, as a layperson without any medical training and expertise, he is simply not qualified to render a medical opinion about the etiology of orthopedic disability, such as a left shoulder disorder. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Furthermore, although the Veteran is competent to comment on his symptoms, the Board does not find the Veteran to be credible. The Court of Appeals for the Federal Circuit has held that lay evidence may not be considered factually incredible solely on the basis of a lack of contemporaneous medical evidence. Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir. 2009). However, here, the Board finds the Veteran's lay contentions not credible due to internal inconsistency as well as inconsistency with other evidence submitted on his behalf. Caluza v. Brown, 7 Vet.App. 498, 511-512 (1995). The Veteran denied having any post-service injury to the left shoulder during the April 2010 VA examination, yet he clearly had a significant injury to the shoulder in December 2007, which required surgery. In addition, as stated previously, the December 2007 private treatment note indicated that the Veteran reported no prior history of left shoulder problems. For these reasons, the Board finds the Veteran's accounts of left shoulder problems following in service injuries are simply not credible. The Board does not dispute the fact that the Veteran has a current diagnosis of a left shoulder disorder and that he injured his left shoulder during service. However, because of the absence of a medical nexus between his current diagnosis and his injury during service, the Board finds that the most probative evidence is against a grant of service connection. Importantly, the VA examiner from August 2010 opined that the Veteran's left shoulder disorder is less likely than not due to service and is clearly due to his post-service injury from December 2007. In addition, arthritis of the left shoulder was first manifested many years after his discharge from service. As such, service connection may not be granted on a presumptive basis for this chronic disability. See 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Consequently, the Board finds that the preponderance of the evidence is against entitlement to service connection for a left shoulder disorder. As the preponderance of the evidence is against his claim, the doctrine of reasonable doubt is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a left shoulder disorder is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs