Citation Nr: 1307441 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 09-39 239 ) 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, including as secondary to service-connected posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL Veteran and his daughter ATTORNEY FOR THE BOARD L. J. N. Driever INTRODUCTION The Veteran had active service from September 1952 to June 1954 and from September 1954 to January 1956, for which he received decorations including the Combat Infantryman Badge. This claim comes to the Board of Veterans' Appeals (Board) on appeal of an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran, with his daughter observing, testified in support of this claim during a hearing held before the undersigned Veterans Law Judge in March 2011. In May 2011, the Board remanded this claim to the RO for additional development. During the course of this appeal the Veteran referred to his right and left shoulder disabilities as if both, rather than just his right shoulder disability, are encompassed in this appeal. By so doing, he is raising a claim for service connection for a left shoulder disability. The Board refers this matter to the RO for appropriate action. A review of the Virtual VA paperless claims processing system reveals no additional, pertinent documents for consideration in support of this claim. This appeal is advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2012). FINDINGS OF FACT 1. A right shoulder disability is not related to the Veteran's active service or service-connected PTSD. 2. Osteoarthritis of the right shoulder did not manifest within a year of the Veteran's discharge from active service. CONCLUSION OF LAW A right shoulder disability was not incurred in or aggravated by service, may not be presumed to have been so incurred, and is not proximately due to, the result of, or aggravated by his service-connected PTSD. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 1154 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. VA's Duties to Notify and Assist Upon receipt and prior to consideration of most applications for VA benefits, VA is tasked with satisfying certain procedural requirements outlined in the Veterans Claims Assistance Act of 2000 (VCAA) and its implementing regulations. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) has mandated that VA ensure strict compliance with the provisions of the VCAA. Quartuccio v. Principi, 16 Vet. App. 183 (2002). A. Notice The VCAA and its implementing regulations provide that VA is to notify a claimant and his representative, if any, of the information and medical or lay evidence not previously provided to the Secretary that is necessary to substantiate a claim. As part of the notice, VA is to specifically inform the claimant and his representative, if any, of which portion of the evidence the claimant is to provide and which portion of the evidence VA will attempt to obtain on the claimant's behalf. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012). These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of disability; (3) a connection between service and disability; (4) degree of disability; and (5) effective date of disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006). Notice under the VCAA must be provided a claimant prior to an initial unfavorable decision by the agency of original jurisdiction. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004). 1. Content The RO provided the Veteran VCAA notice on his claim by letters dated May and June 2008 and May 2011. These letters satisfy the content requirements noted above. Therein, the RO notified the Veteran of the evidence needed to substantiate his claim, identified the type of evidence that would best do so, informed him of VA's duty to assist and indicated that it was developing his claim pursuant to that duty. The RO also provided the Veteran all necessary information on disability ratings and effective dates. The RO identified the evidence it had requested and/or received in support of the Veteran's claim and the evidence it was responsible for securing. The RO noted that it would make reasonable efforts to assist the Veteran in obtaining all outstanding evidence provided he identified its source(s), but that it was the Veteran's responsibility to ensure VA's receipt of all pertinent evidence. In addition, the RO informed the Veteran that it had attempted to obtain his service treatment records on multiple occasions, but had learned that those records are unavailable, having been destroyed in a fire that occurred at a military records storage facility. See Dixon v. Derwinski, 3 Vet. App. 261 (1992) (holding that, where a veteran's service medical records have been destroyed or lost, the Board is under a duty to advise the claimant to obtain other forms of evidence, such as lay testimony, to support his claim). The RO advised the Veteran that, given these circumstances, it would help him reconstruct his service file. Although the RO did not specifically indicate that there was certain evidence that the Veteran could submit to substitute for his service treatment records, it did identify alternate types of documents the Veteran could submit to establish in-service incurrence, including "statements from persons who knew [him]".... In Written Brief Presentations dated October 2011 and December 2012, the Veteran's representative acknowledged his understanding of the elements needed to establish service connection on a direct or secondary basis. It is thus clear the Veteran, through his representative, has received all essential notice and had a meaningful opportunity to participate in the development of his claim. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). 2. Timing Notice under the VCAA must be provided a claimant prior to an initial unfavorable decision by the agency of original jurisdiction. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 119-20 (2004). The RO sent the latter notice letter after initially deciding the Veteran's claim; it is thus untimely. The RO cured this timing defect later, however, by readjudicating the Veteran's claim in a supplemental statement of the case issued in August 2011. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). B. Assistance VA is also to assist a claimant in obtaining evidence necessary to substantiate a claim, but such assistance is not required if there is no reasonable possibility that it would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2012). The RO attempted to obtain all evidence the Veteran identified as being potentially pertinent to his claim, including service treatment records and post-service VA and private treatment records. After the Board remanded this case to the RO in May 2011, the RO sent the Veteran a letter requesting him to authorize the release of his medical records from a private provider the Veteran had previously identified, identify any other outstanding records, and then authorize the release of those records. The Veteran did not respond. VA was thus unable to assist the Veteran further. In addition, and as previously indicated, it learned that the Veteran's service treatment records had been destroyed in a fire. In a case in which a veteran's service records are unavailable through no fault of his own, there is a heightened duty for VA to assist the veteran in the development of his claim and to provide reasons or bases for any adverse decision rendered without these records. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); see also Moore v. Derwinski, 1 Vet. App. 401 (1991) (holding that the heightened duty to assist a veteran in developing facts pertaining to his claim in a case in which service medical records are presumed destroyed includes the obligation to search for alternative medical records). In this case, with the information provided, the RO attempted to reconstruct the Veteran's service records and, as shown below, accepted as sufficient proof of service incurrence alternative evidence substantiating the Veteran's assertions of a right shoulder injury. The RO also afforded the Veteran a VA examination, during which an examiner addressed the etiology of the Veteran's right shoulder disability, and a hearing before the Board, during which the Veteran had an opportunity to discuss the disability. The RO also obtained a medical opinion and addendum opinion in support of this claim. II. Analysis The Veteran seeks service connection for a right shoulder disability. According to written statements submitted in support of this claim and his hearing testimony, he had no right shoulder problems prior to service. Allegedly, he injured himself, including his right shoulder, during service in Korea, while jumping out of a jeep in response to an artillery and mortar attack. He asserts that the soldier sitting behind him followed suit and landed on the Veteran's back, causing pain. The Veteran contends that, due to the fact that he was engaged in combat, he did not complain of or receive treatment for the resulting pain. He further contends that he has had pain, back and right shoulder, since the incident occurred. He has submitted a letter from E.F., a friend who has allegedly known the Veteran since 1962. According to E.F., he recalls the Veteran telling him about the Jeep incident, that three soldiers were involved, that they came under enemy fire, and that the Veteran took cover by jumping out and landing on his stomach in a ditch. Allegedly one of the other soldiers also jumped from the Jeep and landed on the Veteran's back, causing severe pain, but because they were on the front lines and not in close proximity to medical care, the Veteran did not seek treatment after the incident. The Veteran alternatively contends that his right shoulder disability developed secondary to his service-connected PTSD, a condition that affects one's physical health. In support of this assertion, he has submitted articles from the About.com Guide, the Psychiatric Service, and the Psychiatric Quarterly, which discuss the relationship between PTSD and physical health and comorbidities and compare comorbid physical illnesses among veterans with PTSD. See http://ptsd.about.com/od/relatedconditions/a/PTSDandHealth.htm; http://csaweb105v.csa.com/ids70/view/record.php?id=3&recnum=11&log=from_res&SID; and http://www.ncbi.nlm.nih.gov/ppubmed/14699207. These articles indicate that those individuals who suffer from PTSD are more likely to experience a number of physical health problems, including arthritis and pain, that PTSD causes tremendous physical and emotional strain and is associated with poor health and that there may be a relationship between specific medical conditions among the aging population of veterans with PTSD. They also indicate that few studies have examined the relationship between PTSD and physical health and that epidemiological trials are needed. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military, naval or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). To prevail on the issue of service connection, there must be competent evidence of: (1) a current disability; (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between the in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Once evidence is determined to be competent, its credibility must be evaluated. Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency, a legal concept focusing on whether testimony may be heard and considered, and credibility, a factual determination focusing on the probative value of the evidence). Subsequent manifestations of a chronic disease in service, however remote, are to be service connected, unless clearly attributable to intercurrent causes. 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, as distinguished from merely isolated findings or diagnosis including the word "chronic." Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). To establish continuity after discharge, the evidence must demonstrate the following: (1) condition "noted" during service; (2) post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. Id. at 498 (holding that, on the question of whether the veteran has a chronic condition since service, the evidence must be medical unless it relates to a condition as to which, under case law, lay observation is competent). Service connection may be granted for any disease diagnosed after discharge 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) (2012). Service connection may be presumed for certain medical conditions, including arthritis, if it is shown that a veteran served continuously for 90 days or more during a period of war or during peacetime after December 31, 1946, the condition manifested to a degree of 10 percent within one year from the date of discharge, and there is no evidence of record establishing otherwise. 38 U.S.C.A. §§ 1101, 1112(a), 1113, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309(a) (2012). Service connection may also be granted when a claimed disability is found to be proximately due to or the result of a service-connected disability, or when any increase in severity (aggravation) of a nonservice-connected disease or injury is found to be proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). VA amended 38 C.F.R. § 3.310 during the course of this appeal, effective from October 10, 2006, to incorporate explicitly the holding in Allen. 71 Fed. Reg. 52,744-52,747 (2006) (codified at 38 C.F.R. § 3.310 (2012)). This amendment, however, placed additional evidentiary burdens on claimants seeking service connection based on aggravation, specifically in terms of establishing a baseline level of disability for the nonservice-connected condition prior to the aggravation. These substantive changes affect the Veteran's claim as it was filed after October 10, 2006. According to the revised version of 38 C.F.R. § 3.310: Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. See 71 Fed. Reg. 52,744 (2006) (codified at 38 C.F.R. § 3.310(b) (2012)). The intended effect of the revision was to conform VA regulations to the Allen decision, but instead, it effectively resulted in a change in the law, clearly instituting additional evidentiary requirements that must be satisfied before aggravation may be conceded and service connection granted. In addressing the imposition of this new evidentiary requirement, the regulatory comments cite to 38 U.S.C. § 501 as the supporting authority, and not Allen. See 71 Fed. Reg. 52,744-45 (Sept. 7, 2006). These comments indicate that, ultimately, it is the Veteran's responsibility to support his or her claim by providing evidence of the baseline level of severity and that, if an examiner concludes that there is "aggravation", that finding, alone, is not enough. See 71 Fed. Reg. 52,745 (Sept. 7, 2006). The revised version of 38 C.F.R. § 3.310(b) appears to place substantive evidentiary restrictions on a veteran before aggravation may be conceded, restrictions that appear to have no basis in the Allen decision. In the case of any veteran who engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions or hardships of such service, even though there is no official record of such incurrence or aggravation. 38 U.S.C.A. § 1154(b) (West 2002). "Satisfactory evidence" is credible evidence. Collette v. Brown, 82 F.3d 389, 392 (1996). Such evidence may be rebutted by clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b). The provisions of 38 U.S.C.A. § 1154(b) do not establish a presumption of service connection in combat cases but rather ease the combat veteran's burden of demonstrating the occurrence of some in-service incident to which a current disability may be connected. Clyburn v. West, 12 Vet. App. 296, 303 (1999); Caluza v. Brown, 7 Vet. App. 498, 507 (1995). Post-service documents in the claims file, including VA and private treatment records dated since 2006, a report of VA examination conducted in July 2011, and a VA physician's February 2012 and August 2012 opinions, establish that the Veteran currently has a right shoulder disability diagnosed as osteoarthritis. The question is thus whether this disability is related to the Veteran's active service or service-connected PTSD. The Veteran had active service from September 1952 to June 1954 and from September 1954 to January 1956, for which he received the Combat Infantryman Badge. As previously indicated, his service treatment records are unavailable to substantiate his assertion that he sustained an in-service injury while engaged in combat, but the Board finds the assertion competent and credible. It is certainly consistent with the circumstances, conditions and hardships of his combat service and E.F.'s statement, acceptable alternative evidence of service incurrence, confirms that it occurred. There is no information of record suggesting that the Board should question the Veteran's credibility in this regard. The Veteran's service treatment records, including the report of separation examination, do not include any reports of right shoulder pain and show normal clinical evaluations of the Veteran's upper extremities and musculoskeletal system. As pain is lay-observable, the Board nonetheless accepts as competent the Veteran's assertion that, since the Jeep incident, he has experienced pain, including in the right shoulder. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (layperson is competent to report lay observable symptoms, but lacking in medical training and expertise, is not competent to diagnose a medical condition); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence). The Board does not, however, find this assertion credible. The Veteran has been inconsistent when discussing the onset of his right shoulder pain. Initially, when describing the in-service injury, he mentioned resulting back pain only. Later, after filing his right shoulder claim, he reported that the injury also caused right shoulder pain. Even then, his reports remained inconsistent. During his hearing, he indicated that he had had continuous symptoms since service, but later, during a VA examination, he told the examiner that he had had right shoulder pain for five years. His report in this regard matches a history he reported during a prior outpatient treatment visit. According to medical evidence of record, the Veteran first reported right shoulder complaints in 2006, many years after his discharge from service and, since then, has continued to receive treatment for right shoulder symptoms. Although the Veteran's statements regarding the in-service injury are both competent and credible, under Jandreau, his statements relating his right shoulder disability to the injury or alternatively to his PTSD are not. Determining the etiological relationship between a medical condition and an injury or another medical condition, is complex, requiring medical training or expertise, and beyond the Veteran's s capability of lay observation. VA thus enlisted the help of two medical professionals - a VA examiner and a VA physician - to address the etiology of the Veteran's right shoulder disability. In July 2011, the Veteran underwent a VA examination, during which the examiner diagnosed osteoarthritis of both shoulders and found the condition less likely than not caused by, a result of, aggravated by, or related to any in-service disease, event, or injury, including the Jeep incident. The examiner based this opinion on the following facts: (1) The Veteran was not certain which shoulder he was claiming to be related to service; (2) The Veteran stated that he should be claiming his left shoulder and not his right shoulder, but since both shoulders hurt, he was claiming both shoulders; (3) The Veteran also stated that his right shoulder began hurting five years ago (20 years after the left shoulder) and that he attributed the right shoulder pain to shifting gears in the truck he had driven throughout his lifetime; and (4) Primary osteoarthritis is overwhelmingly an age related process, worsened by occupational activities and daily physical stresses. The examiner concluded that there was no reasonable way to connect the Veteran's right shoulder osteoarthritis to service. The VA physician offered opinions regarding whether the Veteran's right shoulder disability is related secondarily to his service-connected PTSD. In February 2012, he reviewed the claims file and acknowledged the Veteran's service and medical history and the internet article titled, "PTSD and Physical Health", noted above. He then ruled out a relationship between the Veteran's right shoulder arthritis and service-connected PTSD. He noted that, although the article is interesting, it does not provide a scientifically strong enough basis upon which to show a direct cause and effect between PTSD and arthritis. He indicated that the overabundance of literature in orthopedic and rheumatologic medical journals establish that osteoarthritis is primarily a degenerative problem that can also be posttraumatic. He further indicated that osteoarthritis has not been scientifically proven to be caused or aggravated beyond its natural progression by PTSD. He agreed that many patients with mental health issues, including PTSD, have a variety of different problems dealing with health issues, including pain. He noted, however, that it is not true that such mental health issues would directly cause or aggravate, beyond natural progression, the symptoms of arthritis. Based on this reasoning, he concluded that the Veteran's right shoulder arthritis is not proximately due to or the result of, or permanently aggravated by, his service-connected PTSD. In August 2012, the same VA physician once again reviewed the claims folder, including the internet articles submitted by the Veteran. Referencing the article titled, "The Link Between Posttraumatic Stress Disorder and Physical Comorbidities, a Systematic Review," he indicated that it was a literature review article, which is the end result of authors reviewing literature and trying to offer summary conclusions based on the literature. He noted that this particular article reviewed the association between PTSD and other medical disorders, including arthritis. Similarly to his explanation in his prior opinion, he indicated that this article does not prove a causal relationship between PTSD and arthritis. He explained that there is a distinction between association and causation, the former meaning some things are often found together, and the latter meaning that one thing causes the other. He noted that many medical conditions are associated, including arthritis and aging, but that there must be significant scientific data supporting causation for a veteran to be granted service connection for his arthritis secondary to PTSD. He concluded that, in this case, there is no medical literature supporting a cause and effect relationship between PTSD and arthritis or the assertion that PTSD aggravates arthritis beyond its natural progression. He stated that he stood by his previous opinion which includes the following: It is not at least as likely as not that the Veteran's right shoulder arthritis is proximately due to of the result of his service-connected PTSD, or is permanently aggravated by his PTSD. The Board must assess the credibility and weight to be attached to a medical opinion. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Provided an opinion includes adequate statements of reasons or bases, the Board may favor one over another. Wray v. Brown, 7 Vet. App. 488 (1995). An assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Rather, the Board must consider the weight to be placed on an opinion depending upon the reasoning employed to support the conclusion and the extent to which the physician reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). A medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In this case, the Board finds the VA examiner's and physician's opinions probative, more probative than the articles the Veteran submitted on the issue of causation. The articles are supportive to a certain degree and in a general sense and would be moreso if attached to a favorable medical opinion. Alone, however, they are not sufficiently specific to represent a nexus opinion. They do not refer to the Veteran or the facts of his case and are not based on an evaluation of his right shoulder or PTSD. Mattern v. West, 12 Vet. App. 222, 229 (1999) (treatises can discuss generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least plausible causality based upon objective facts). To the contrary, the VA examiner's July 2011 opinion is based on a review of the claims file, which includes multiple records of evaluations, and an accurate accounting of the Veteran's medical history. In addition, it is well reasoned and supported by rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion). Similarly, the VA physician's opinions are based on a review of the claims file and the articles the Veteran submitted and is well reasoned and supported by rationale. See Nieves-Rodriguez (probative value of medical opinion depends on whether it is factually accurate, fully articulated and includes sound reasoning for its conclusion) The Veteran has not submitted a medical opinion refuting those of the VA examiner and physician. In the absence of competent and credible evidence relating the Veteran's right shoulder disability to his active service or service-connected PTSD or competent and credible evidence of continuity of right shoulder symptomatology since service, the Board concludes that a right shoulder disability was not incurred in or aggravated by active service and is not proximately due to, the result of, or aggravated by his PTSD. In the absence of evidence establishing that the Veteran's osteoarthritis manifested prior to the 2000s, decades after his discharge from service, the Board also concludes that that condition may not be presumed to have been so incurred. A claimant is responsible for presenting evidence in support of his claim for benefits under laws administered by VA. VA is responsible for considering all such evidence, lay and medical. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA is to give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In this case, the evidence is not in relative equipoise. Rather, as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule is not for application and the claim must be denied. ORDER Service connection for a right shoulder disability, including as secondary to PTSD, is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs