Citation Nr: 1308480 Decision Date: 03/13/13 Archive Date: 03/20/13 DOCKET NO. 10-33 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to service connection for a right shoulder disorder. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from May 1990 to December 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. FINDING OF FACT A right shoulder disorder was not shown in service or within the first post service year; and, the competent and credible fails to establish a relationship between any current right shoulder conditions, to include biceps tendonitis and recurrent rotator cuff tendonitis, and service. CONCLUSION OF LAW The criteria for service connection for a right shoulder disorder are not met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2012). (CONTINUED NEXT PAGE) REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. First, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, letters to the Veteran from the RO (to include letters in January 2009 and May 2010) specifically notified her of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate her claim; (2) informing the Veteran about the information and evidence VA would seek to provide; and (3) informing the Veteran about the information and evidence she was expected to provide. The United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of this information in the January 2009 and May 2010 letters mentioned above. Second, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate her claim. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2011). The information and evidence associated with the claims file consist of her service treatment records (STRs), VA medical treatment records, and statements and from the Veteran, a friend, and her representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. VA has not provided the Veteran with a VA examination to determine the etiology of the right shoulder disability. In this regard, the Secretary must provide a VA medical opinion when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability; and (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this case, there is no evidence of the Veteran injuring her right shoulder in service or any documented right shoulder complaints. She has also provided an inconsistent history of her alleged in service right shoulder problem by initially claiming that her shoulder pain was progressive in nature but later referring to a traumatic injury. There is also post-service objective medical evidence, which will be discussed below, that causes the Board to further question her claim of suffering from a chronic right shoulder disorder since service. Put another way, elements (2) and (3) of the McLendon analysis have not been shown. In sum, the Board is satisfied that any procedural errors in the originating agency's development and consideration of the claim were insignificant and non prejudicial to the Veteran. Accordingly, the Board will address the merits of the claims. Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp. 2011); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). 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). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Background and Analysis The Veteran contends that she has a right shoulder disorder that is of service origin. Specifically, she asserts that during training exercises during boot camp she was climbing a wall with her rifle and it got caught causing a pull to her right arm when she jumped down the other side. She also recalls having pain in the right arm/shoulder after a series of shots during service. She believes that current right shoulder problems are related to her inservice injuries. (See her statement upon VA FORM 21-4142) in February 2009. Of record in support of her claim is a January 2009 statement by a friend who attests that for many years the Veteran used a heating pad on her right shoulder on almost a daily basis after her discharge. That friend only recalls seeing the Veteran use a hearing pad sometime in 1993. The STRs are negative for report of, treatment for, or diagnosis of a right shoulder disorder. Reference is made to a November 1992 report of a Medical Board. There was a detailed discussion of the Veteran's complaints of bilateral knee pain since August 1990. No reference was made to right shoulder pain or injury. Had the Veteran had a problem with her shoulder, as she now claims, the Board believes that there would have been some mention made in the records or by the Veteran. She was clearly not adverse to registering complaints with regard to her knees and has provided no explanation as why she did not mention her right shoulder. Similarly, when initially examined post service by VA in December 1993, the Veteran did not report right shoulder problems. Such was approximately one year after the Veteran's service discharge. The Board again finds that the lack of reference to her shoulder at that time weighs against her present assertion of experiencing chronic shoulder symptomatology since service. Indeed, the first finding with regard to right shoulder symptoms is not documented until April 1994 wherein she was seen for right shoulder popping with motion. Right shoulder rotator cuff tendonitis was diagnosed in July 1994. Interestingly, when she was evaluated in November 1995, the Veteran clearly provided a history of experiencing right shoulder pain for the past 11/2 years (mid-1993) while highlighting that her knee pain had existed for over 3 years or since service. Additional VA records show treatment for tendonitis rotator cuff of the right shoulder in November 1998. X-ray was within normal limits. In March 2004, she was noted to have an ongoing right shoulder problem stemming from her service days. X-ray of the shoulder was unremarkable. In April 2004, she said that she injured her shoulder in 1991. She felt that it was related to holding her rifle and this was a progressive injury. While medications were effective, her complaints returned once the medication was out of her system. She worked as a home health aid and felt that this exacerbated her problem. Exam was unremarkable, but chronic rotator cuff tendonitis was assessed. The examiner discussed physical therapy exercise with the Veteran, and she agreed to a cortisone injection. The Veteran continued to be seen at VA for occasional right shoulder complaints as evidenced by an October 2007 report wherein she gave a history of a shoulder chronic condition since 1991. In November 2008, it was noted that she had a history of chronic recurrent right shoulder pain which was likely chronic tendonitis. X-ray again was unremarkable. In December 2009, her right shoulder complaints included pain, tenderness, and limitation of motion. This had been off and on since service when she injured the shoulder in a training accident while scrambling over a wall with a rifle that got caught in the rigging and left her hanging there until she was assisted down. After exam, the assessment was of biceps tendonitis. X-ray of the right shoulder in December 2009 showed no current evidence for calcific tendonosis. In January 2010, right shoulder chronic rotator cuff tendonitis was assessed. The Board notes that the above-cited evidence reflects current diagnosis of right shoulder disability. The evidence shows treatment intermittently since 1994 for right shoulder symptoms which have resulted in the current diagnoses of right biceps tendonitis and chronic recurrent right shoulder rotator cuff tendonitis. However, the evidence does not support a finding that there exists a medical nexus between right shoulder disability and service. As noted, although the Veteran reports inservice right shoulder injury, there is no medical evidence of record suggesting such. The earliest objective medical evidence of any right shoulder disability (rotator cuff tendonitis) is in mid 1994, well over a year after service. Moreover, it is noted that when she was treated by VA in November 1995 for right shoulder complaints, she gave a history of having had a history of shoulder problems for 11/2 years indicating that her problem began after service separation in December 1992. The fact that she clearly distinguished the history of her shoulder symptomatology from that of her knees is highly probative. Such again demonstrates that the Veteran's right shoulder symptomatology had its onset post-service. There is no competent evidence or opinion suggesting that there exists a medical nexus between any currently diagnosed right shoulder disability and service. The Board acknowledges that on several occasions in the record, VA staff physicians have made a notation that right shoulder complaints began in 1991 and have continued ever since. These notations appear to be only the examiner recording the Veteran's own reported medical history, without comment. As such, these notations do not constitute competent evidence of the required nexus. There mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional. See Grover v. West, 12 Vet. App. 109, 112 (1999); Leshore v. Brown, 8 Vet. App. 406, 409 (1995). Indeed, to the extent that any of these reports could be interpreted as a medical opinion as opposed to a transcription of the medical history, the Board emphasizes that the Veteran's assertion of experiencing chronic right shoulder pain since service is not credible. Any opinion based on such a history thereby lack probative value. Coburn v. Nicholson, 19 Vet. App. 427 (2006). The Board acknowledges the Veteran's contentions as to her right shoulder condition with an onset in service or shortly thereafter, and continuous symptoms since service. The Board notes that the Veteran is competent to offer evidence as to facts within her personal knowledge, such as the occurrence of an inservice injury, and her own symptoms. Moreover, her friend is competent to provide evidence as to her recollections regarding the Veteran's post service shoulder complaints, to include the use a heating pad on an almost daily basis. See, e.g., Layno v. Brown, 6 Vet. App. 465, 469 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, such assertions must be considered in light of the medical and other evidence of record. Cf. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 06). Here, there is no evidence that the Veteran complained of or was treated for right shoulder problems in service, and she did not report such on her initial VA exam after service in December 1993. While the Veteran specifically complained of knee problems in service for which she is now service-connected, similar reports involving the shoulder are not indicated. It was over a year after service before right shoulder complaints were reported, and in her own statement from 1995, this was noted to have initially begun after service. As such, the Board finds that the Veteran's assertions as to the onset of her shoulder symptoms are outweighed by the competent, probative evidence of record. For all the foregoing reasons, service connection for a right shoulder disorder must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, as no competent, persuasive evidence supports the claims, that doctrine is not for application. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2011); 38 C.F.R. § 3.102 (2012); Gilbert, 1 Vet. App. at 53- 56. ORDER Service connection for a right shoulder disorder is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs