Citation Nr: 1307544 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 07-18 248 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from October 1953 to November 1955 and in the United States Navy from November 1957 to October 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a March 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified in a hearing before the RO's Decision Review Officer (DRO) in March 2011. A transcript of his testimony is of record. In May 2012 the Board issued a decision that in relevant part reopened the Veteran's previously denied claim of entitlement to service connection for a left shoulder disability and remanded the case to the Agency of Original Jurisdiction (AOJ)/Appeals Management Center (AMC) for adjudication of the merits. The requested development has been completed, and the claim is properly before the Board for appellate consideration. This appeal has been advanced on the Board's docket pursuant to 38 U.S.C.A. § 7107(a)(2) (West 2002) and 38 C.F.R. § 20.900(c) (2012). FINDINGS OF FACT 1. The Veteran did not have arthritis of left shoulder during service or to a compensable degree within the first year after discharge from service 2. The Veteran's claimed left shoulder disability is not due to or aggravated by service. CONCLUSION OF LAW The criteria for service connection for a left shoulder disability are not met, and service connection for arthritis of the left shoulder may not be presumed. 38 U.S.C.A. §§ 1110, 1112, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant 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 claimant is expected to provide. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency and clarifying that the burden of showing harmful or prejudicial error normally falls on the party attacking the agency's determination). Service treatment records (STRs) relating to both periods of active service are of record. The Board has reviewed the service treatment records on file relating to both periods of active service and finds those records appear to be complete; there is no indication of any missing documents therein. However, because the Veteran asserted that he received treatment during his first period of active service that is not reflected in the STRs, the AOJ/AMC went to great lengths to request any outstanding STRs, as reflected in requests via the Personnel Information Exchange System (PIES) in June 2012 and October 2012, both of which were met with negative responses. VA has no further duty to seek to obtain that which does not exist. Counts v. Brown, 6 Vet. App. 473, 477 (1994); Porter v. Brown, 5 Vet. App. 233, 237 (1993). The Veteran has been afforded a hearing before a DRO in which he presented oral argument in support of his claim. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the DRO did not note the bases of the prior determinations or the elements that were lacking to substantiate the claim. The DRO asked specific questions, however, directed at identifying whether the Veteran meets the criteria for service connection. The DRO did not specifically seek to identify any pertinent evidence not currently associated with the claims. This was not necessary, however, because the Veteran volunteered his treatment history and his symptoms since service. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the DRO hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that, consistent with Bryant, the DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Veteran has been advised of his entitlement to a hearing before the Board but has not requested such a hearing. The Veteran has not been afforded a VA examination for the left shoulder. However, as noted in detail below, he has not shown a prima facie case of entitlement to service connection; accordingly, VA examination is not required at this point. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also Wells v. Principi, 326 F. 3d. 1381, 1384 (Fed. Cir. 2003); Duenas v. Principi, 18 Vet. App. 512 (2004) (per curiam). The Board acknowledges that a veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service and thus trigger entitlement to an examination, per McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). However, as noted below the Board has found the Veteran's assertion of continuity to be inconsistent with the documentary evidence of record and thus not credible. Accordingly, McLendon is not applicable. Treatment records have been obtained from those VA and private medical providers identified by the Veteran as having records relevant to the issue on appeal. There is no indication that any additional evidence relevant to the issue decided is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide any additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006); Sanders, 129 S.Ct. 1696. Applicable Laws and Regulations Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Where a veteran served for at least 90 days during a period of war or after January 1, 1947, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. When there is a proximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Evidence and Analysis The Veteran's first period of active duty was from October 1953 to November 1955 in the United States Air Force. STRs associated with that period of service are silent in regard to any injury or complaint relating to the left shoulder. Report of Medical Examination in November 1955 showed clinical evaluation of the upper extremities as "normal" at the time of discharge from service. In May 1956 the Veteran submitted a claim for service connection for "stomach trouble - pain in the chest and shoulder." He had a VA examination in June 1956 in which he denied any specific trauma to the shoulders in service, but asserted he simply had onset of pain in the left shoulder that had spread over time to the right. The examiner found no current disorder of the shoulders, to include on X-ray. The examiner's diagnosis was "no residuals of disease or injury" to either shoulder. The RO denied service connection by a rating decision in July 1956. The Veteran's second period of active service was from November 1957 to October 1959 in the United States Navy. STRs associated with that period of service include an enlistment physical examination in November 1957 in which the upper extremities were shown to be "normal" on examination. There is no indication of shoulder injury or complaints during this period of service. Report of medical examination at the time of discharge in September 1959 showed clinical evaluation of the upper extremities to be "normal." The file contains a neurosurgical consult by Dr. Richard Hirshberg, dated in September 1975. Dr. Hirshberg stated the Veteran had been injured in a motor vehicle accident (MVA) in July 1975, with subsequent continuing pain in the left shoulder radiating into the left arm. The file contains a March 1982 treatment note by Dr. R.C. Ponder showing the Veteran reported having had a workplace injury in February 1982 in which he fell approximately 20 feet head first into the hold of a ship, in the course of which he was knocked unconscious. The Veteran reported residual symptoms thereafter including left shoulder pain. Clinical examination of the left shoulder was grossly normal, although there was some tenderness over the posterior aspect of the scapular in the supraspinatous fossa. X-ray of the left shoulder showed mild degenerative changes present in the acromioclavicular (AC) joint. Dr. Ponder's impression in relevant part was contusion about the left shoulder, with symptoms consistent with soft tissue injury. In April 1982 the Veteran presented to Dr. Ponder complaining of left shoulder pain and radiating back pain; Dr. Ponder's impression was left shoulder and low back pain secondary to trauma. Thereafter the Veteran presented regularly to Dr. Ponder complaining of continuing back pain with radiculopathy, but further complaints regarding the left shoulder were not cited. In March 1983 the Veteran filed a request to reopen the previously-denied claim of service connection for pain in the chest, shoulder and arms. The Veteran attributed the claimed symptoms to service in Greenland with the Air Force. The RO denied reopening of the claim by a rating decision in March 1983. A VA medical certificate dated in September 1983 shows the Veteran presented complaining of pain in the chest and shoulder blades. The clinical diagnosis was pleuritic chest pain. A letter by Dr. Ponder in May 1989 states the Veteran presented showing very little insight into his pain in the shoulders, back, legs and arms. Essentially, the Veteran was using analgesic pain medication at a rate that Dr. Ponder considered to be excessive. Dr. Ponder stated the Veteran had no current mechanical lesions that warranted surgical treatment. A VA emergency treatment note in July 2003 states the Veteran presented complaining of shoulder, neck, elbow, thigh, hip and head pain after being hit by a car the day before. Clinical examination showed the shoulders to be tender but otherwise normal. X-ray of the shoulders was negative. Treatment notes from Dr. Ponder indicate that in July 2003 the Veteran was hit by a truck while he was walking. He complained of continued pain, including to the neck and upper extremities, after the VA treatment. On examination there were no abnormalities related to the left shoulder. In August 2003 the Veteran complained of residual aching in both shoulders, as well as the elbows and wrists. In September 2003 the Veteran again complained of significant discomfort in both shoulders, especially the right shoulder, as well as the neck, lower back and bilateral knees. On examination he could rotate the shoulders internally and externally. There was pain, especially with abduction. The Veteran was to continue to take medication and to exercise. Treatment notes from Dr. Ponder show the Veteran complained of shoulder pain and other joint and muscle pain in January 2004 through March 2004. In May 2004 the Veteran again presented complaining of a multiplicity of painful areas in the neck, shoulders, back, elbows and knees. Dr. Ponder felt that each of the joints he discussed demonstrated pronounced degenerative changes, but the Veteran was 70 years old and those degenerative changes were compatible with his age. The Veteran subsequently complained to Dr. Ponder of shoulder pain in August 2004 and November 2004. The Veteran filed his instant claim for "pain in shoulder" in June 2005. He submitted a letter in August 2005 asserting he had experienced shoulder pain in the Air Force and Navy. The Veteran asserted in his April 2006 Notice of Disagreement (NOD) that he was injured in the Air Force and also in the Navy. He submitted a Statement in Support of Claim in September 2006 asserting that he had shoulder pain since 1954. The Veteran presented to the VA emergency room in July 2006 complaining of chest pain radiating to the left shoulder and arm. The clinical impression was uncontrolled hypertension and possible mild congestive heart failure (CHF). The Veteran testified at the March 2011 hearing before a DRO that his claimed shoulder pain is related to pneumonia that he had during both periods of active service. The Veteran submitted Statements in Support of Claim in May 2012 and August 2012 asserting he injured his left shoulder in Greenland in July 1955 while pushing a vehicle that had become stuck in the snow and that the left shoulder was treated in service and had given him problems since 1955. The Veteran thereafter submitted a letter in January 2013 that essentially made the same assertions of left shoulder injury in Greenland in July 1955, with continual problems thereafter. Review of the file shows the Veteran has been identified as having X-ray evidence of degenerative changes in the left shoulder, per Dr. Ponder's treatment notes in March 1983 and May 2004. Accordingly, the first element of service connection, medical evidence of a disability, is met. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000); Hibbard v. West, 13 Vet. App. 546, 548 (2000); Collaro v. West, 136 F.3d 1304, 1308 (Fed. Cir. 1998). In this case there is no competent or credible evidence showing the Veteran's claimed left shoulder disability is etiologically related to service. The Board notes at the outset that the Veteran is diagnosed with arthritis, but there is no indication of arthritis to any degree in service as demonstrated by his normal discharge examination in September 1959. Further, there is no indication that arthritis was manifested to a compensable degree within the first year of discharge from service, as demonstrated by the absolute silence of any complaint of left shoulder symptoms prior to the MVA in July 1975, more than 15 years after discharge from service. Accordingly, service connection on a presumptive basis under 38 C.F.R. § 3.309(a) is not warranted. The Veteran's STRs are completely silent in regard to any injury of the left shoulder during either period of service, and separation examinations from both periods of active service showed the upper extremities to be normal on examination. Accordingly, the second element of service connection, evidence of an in-service incurrence or aggravation of a disease or injury, is not met, and the Veteran has not shown a prima facie case of entitlement to service connection. The Board acknowledges at this point that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). Further, the Veteran is competent to report events in service such as undocumented injuries and undocumented medical treatment received. However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, id. (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza , 7 Vet. App. 498. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board may not ignore a veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits; personal interest may, however, affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board finds that the Veteran's assertions of left shoulder problems since July 1955 are not credible because such assertions are inconsistent with the medical evidence of record. After July 1955, the Veteran had an Air Force separation examination in November 1955, a VA examination in June 1956, a Navy enlistment examination in November 1957 and a Navy discharge examination in September 1959, all of which showed the upper extremities to be normal on examination. The Veteran's assertion of specific left shoulder trauma during service has been inconsistent over time. During VA examination in May 1956 the Veteran specifically denied any trauma to the left shoulder in service, asserting instead that left shoulder pain had developed gradually, and he testified before the DRO in March 2011 that his shoulder pain was associated with pneumonia. It was not until May 2012 that the Veteran began asserting specific traumatic injury in service. The Veteran may indeed have had a traumatic injury as he now asserts, but the STRs show that any traumatic injury in 1955 was without chronic residuals. There is some indication in the file that the Veteran began having left shoulder problems with his post-service MVA in July 1975, with further aggravations by his workplace accident in February 1982 and his second MVA in July 2003. Dr. Ponder has also indicated that the Veteran's degenerative changes of multiple joints are consistent with aging. However, nothing in the file constitutes competent medical opinion suggesting that the Veteran's claimed left shoulder disability is incurred in or aggravated by service. The Veteran has asserted that his left shoulder symptoms are associated with pneumonia, and the file shows the Veteran has had chest pain due to CHF that radiates into the left shoulder. The Veteran is not service-connected for either a respiratory disorder or for a cardiac disorder, so any left shoulder symptoms associated with such disorders are not subject to service connection. The Board has carefully considered the benefit-of-the-doubt rule, but the preponderance of the evidence is against the claim of service connection for a left shoulder disability. There is no doubt to be resolved, and service connection for a left shoulder disability is not warranted. ORDER Service connection for a left shoulder disability is denied. ____________________________________________ SCOTT SHOREMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs