Citation Nr: 1308749 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 10-04 879 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon THE ISSUE Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran served on active duty from November 1950 to August 1954. This appeal to the Board of Veterans' Appeals (Board) arose from a March 2009 rating decision in which the RO denied service connection for a bilateral shoulder disability. In July 2009, the Veteran filed a notice of disagreement (NOD). A statement of the case (SOC) was issued in January 2010, and the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans' Appeals) in February 2010. In June 2012, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the RO; a transcript of that hearing is of record. During the Veteran's hearing, the undersigned agreed to advance this appeal on the Board's docket, pursuant to 38 U.S.C.A. § 7107(a)(2)(C) (West 2002) and 38 C.F.R. § 20.900(c) (2012). In July 2012, the Board remanded the matter on appeal to the RO, via the Appeals Management Center (AMC) in Washington, DC, for further action, to include additional development of the evidence. After completing the requested development, the RO/AMC continued to deny the claim (as reflected in a December 2012 supplemental SOC (SSOC)) and returned the matter to the Board for further consideration. The issue previously before the Board was service connection for bilateral shoulder disability. However, in a December 2012 rating decision, the RO granted service connection for arthritis (acromioclavicular and glenohumeral joints), tendonitis, rotator cuff syndrome, left shoulder, representing a full grant of that benefit sought. Thus, the issue on appeal has been recharacterized to reflect only the right shoulder as set forth on the front page of this decision. As a final preliminary matter, the Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. The Veteran's Virtual VA electronic claims folder was reviewed in connection with this claim. FINDINGS OF FACT 1. All notification and development actions needed to fairly adjudicate the claim on appeal have been accomplished. 2. There is no credible evidence of any right shoulder injury or chronic problems during, or continuing since, service; and the only medical opinion on the question of whether there exists a medical nexus between right shoulder disability first manifested many years post service and service weighs against the claim. CONCLUSION OF LAW The criteria for service connection for a right shoulder disability are not met. 38 U.S.C.A. §§ 1101, 1110, 1111, 1112, 1131, 5103, 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Due Process Considerations The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). Notice requirements under the VCAA essentially require VA to notify a claimant of any evidence that is necessary to substantiate the claim(s), as well as the evidence that VA will attempt to obtain and which evidence he or she is responsible for providing. See, e.g., Quartuccio v. Principi, 16 Vet. App. 183 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). As delineated in Pelegrini v. Principi, 18 Vet. App. 112 (2004), after a substantially complete application for benefits is received, proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim(s); (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim(s), in accordance with 38 C.F.R. § 3.159(b)(1). The Board notes that, effective May 30, 2008, 38 C.F.R. § 3.159 has been revised, in part. See 73 Fed. Reg. 23,353 -23,356 (April 30, 2008). Notably, the final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request that a claimant provide any pertinent evidence in his or her possession. VA's notice requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA-compliant notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO, to include the AMC). Id.; Pelegrini, 18 Vet. App. at 112. See also Disabled American Veterans v. Secretary of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003). However, the VCAA notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. In this appeal, in a January 2009 pre-rating letter, the RO provided notice to the Veteran explaining what information and evidence was needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the appellant, and what information and evidence would be obtained by VA. This letter also provided the Veteran with general information pertaining to VA's assignment of disability ratings and effective dates, as well as the type of evidence that impacts those determinations. The March 2009 rating decision reflects the initial adjudication of the claim after the issuance of this letter. Hence, the January 2009 letter-which meets the content of notice requirements described in Dingess/Hartman and Pelegrini-also meets the VCAA's timing of notice requirement. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter herein decided. Pertinent medical evidence associated with the claims file consists of service treatment records, VA and private treatment records, and the reports of February 2012 and November 2012 VA examinations. Also of record and considered in connection with the claims are various written statements, including hearing testimony, provided by the Veteran and by his representative, on his behalf. The Board finds that no further action in this claim, prior to appellate consideration, is required. The Board observes that the Veteran reported being hospitalized in October 1951 for three months at the Oakland Naval Hospital. However, a request for such records to the National Personnel Records Center received a negative response in December 2009. In an April 2010 letter, the Veteran was notified that these records could not be located and requested any additional information from the Veteran to which he failed to respond. Moreover, service treatment records do include a hospital summary from this facility dated in November 1951. Thus, any further attempts to obtain such records would be futile. The Board finds that no additional RO action to further develop the record in connection with the claim for service connection, prior to appellate consideration, is required. As noted, the Board sought further development of the claim in July 2012. In July 2012, the Board instructed the RO/AMC to obtain any additional VA treatment records since August 2010 and send the Veteran another letter requesting any additional evidence. Thereafter, the RO/AMC was directed to arrange for the Veteran to undergo VA examination after all the pertinent records were associated with the claims file. A remand by the Board confers upon the veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v West, 11 Vet. App. 268, 271 (1998). In July 2012, the RO/AMC sent a letter to the Veteran requesting information concerning any additional information and evidence with respect to his claim. The RO obtained VA treatment records since August 2010, which have been associated with the Veteran's Virtual VA electronic record. Moreover, the Veteran was afforded another VA examination in November 2012. The examiner exhibited sufficient medical expertise to perform the examination and the examination is adequate for appellate review. Accordingly, the Board finds that the RO/AMC have substantially complied with the Board's remand directives. See Dyment v. West¸ 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall, 11 Vet. App. 268 where Board's remand instructions were substantially complied with); see also D'Aries v. Peake, 22 Vet. App. 97, 105-106 (2008) (finding that substantial compliance, rather than strict compliance, with the terms of a Board engagement letter requesting a medical opinion is required). In summary, the duties imposed by the VCAA have been considered and satisfied. Through various notices of the RO/AMC, the Veteran has been notified and made aware of the evidence needed to substantiate these claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claim. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the Veteran or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matter herein decided, at this juncture. See Mayfield, 20 Vet. App. at 543 (rejecting the argument that the Board lacks authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Analysis The Veteran is seeking service connection for a right shoulder disability. In statements of record and at the Board hearing, he has asserted injuring his right shoulder while in service during a judo match as well as when falling from a cargo net while aboard ship. 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; 38 C.F.R. § 3.303. Such a determination requires a finding of current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Service connection may be granted for any disease diagnosed after discharge from 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). Where a veteran served 90 days or more during a period of war or after December 31, 1946, and arthritis becomes manifest to a degree of l0 percent within 1 year from 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; 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service (or within the presumptive period under § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributed to intercurrent causes. Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is questioned. When the fact of chronicity in service is not adequately supported, then the showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). As an identified chronic disease, arthritis may be subject to service connection based upon a showing of continuity of symptomatology . See Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). Considering the evidence in light of the governing legal authority, the Board finds that the claim for service connection for a right shoulder disability must be denied. Service treatment records are silent with respect to any findings of a right shoulder disability. While the records do document that the Veteran sustained an injury to his left elbow during a judo contest in September 1951, there is no mention of any injury to the right shoulder. The Board also observes that the Veteran reported being stationed on the USS LST 1080 when he fell from the cargo net. However, an October 1953 record showed that he was examined and found qualified for transfer from that ship. Importantly, an August 1954 service examination prior to discharge showed that the Veteran's upper extremities were evaluated as clinically normal and there was no mention of any right shoulder problems, to include injury. In July 1995, the Veteran filed a claim for service connection for his left elbow, but did not then note any complaints pertaining to the right shoulder. Moreover, the Veteran was silent with respect to any right shoulder problems when he first sought treatment at the VA in October 1999. Another January 2000 treatment record reflects that the Veteran presented to establish primary care. The record was again silent with respect to any right shoulder complaints and on examination of the musculoskeletal system, he only reported right knee pain. The first post service medical evidence of a right shoulder disability is reflected in the report of a February 2008 private MRI. The recorded clinical history noted right shoulder pain and a fall three months prior. The impression was massive rotatory cuff tear involving the supraspinatus tendon and moderate acromioclavicular degenerative change. There was a handwritten notation questioning whether the tear was acute vs chronic. A follow up clinical record in March 2008 again showed the Veteran reported falling in November. He had experienced problems with his shoulder since the fall. The assessment was acute on chronic rotator cuff tear, right shoulder. The examiner noted that initial history was that the Veteran really had no significant problems with his shoulder prior to injury. However, he reported that 30 years ago, he worked as a carpenter and he got to the point where he could not drive nails with his right are over his head. Once the episode calmed down, he could use his shoulder pretty well, but nothing high demand over his head. The examiner indicated that this fact made him believe that the right shoulder problem was an acute on chronic problem. VA treatment records dated in November 2008 show that the Veteran reported falling and injuring his right shoulder in November 2007. The Veteran indicated that he was told by an orthopedic surgeon that his MRI showed an old injury and that he remembered falling on his right side in a cargo net while in Korea, but had no pain afterwards. Follow up treatment records continued to show complaints of right shoulder pain. In January 2009, the Veteran filed his initial claim for service connection for a right shoulder disability. An August 2010 VA record showed an assessment of chronic right shoulder weakness due to rotator cuff tear in distant past. Follow up records showed the same assessment. The Veteran was afforded a VA examination in February 2012. He then reported that during the Judo competition, his right upper extremity was grabbed and he was thrown to the ground. However, the Veteran did not remember any pain in the right shoulder when being treated at the Naval Hospital for his left elbow. He reported his shoulder hurting a year or so later when trying to throw a ball. He also again stated that he hurt his shoulder when he fell into a cargo net. He indicated that his experienced shoulder pain periodically ever since that time with it worsening in the last five years. After reviewing the claims file and examining the Veteran, the examiner determined that it was less likely than not that the Veteran's right shoulder disability was incurred in or caused by the claimed in-service injury, event or illness. The examiner rationalized that there was no supporting documentation of a right shoulder disability. In fact, in medical situations, the Veteran did not list the right shoulder as a problem or report any injury until 2007 and the adverse symptoms appeared to have started with that injury. In support of his claim the Veteran submitted a July 2012 lay statement from his son, who was born in 1977. The son stated that while he was growing up, the Veteran could not lift with his shoulder. The Veteran also submitted a statement from his younger brother. He indicated that he recalled the Veteran suffering an injury to his right shoulder in 1951 and that at Christmas that year, the Veteran was unable to extend his arms above his shoulder. He also reported that after service, the Veteran was limited in his arm movement and complained of pain. During the June 2012 Board hearing, the Veteran reiterated his prior statements that he suffered an injury to his right shoulder during a judo match. At this point, he indicated that he reported his right shoulder pain to the doctors at that time. He also again reported falling from the cargo net, but indicated that he did not report any injury because there was no doctor on board the ship he was stationed on, the LST 1080. He further testified that he had experienced problems with his right shoulder since service. On remand, he was afforded another VA examination in November 2012. The Veteran reported the same history of injuries to the right shoulder. After reviewing the claims file and examining the Veteran, the examiner opined that the Veteran's right rotator cuff syndrome was less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner rationalized that there was not medical evidence of a right rotator cuff injury in the service treatment records. An examination in October 1953 determined that the Veteran was "fit for transfer." An individual with a rotator cuff condition could not pass such an examination. The examiner thus concluded that the available evidence does no document a right rotator cuff injury or right rotator cuff condition at time of the claimed injury. He further indicated that, without a right shoulder injury, there was also no basis for a claim for post traumatic arthritis or tendonitis of the right shoulder. As indicated, in this case, the Veteran's service treatment records do not document any right shoulder problems, to include injury during service. However, he has alleged that he had problems associated with injuries in service that continued after service and became progressively worse. The Board recognizes that the Veteran is competent, as a layperson, to report that about which he has personal knowledge, to include his own symptoms. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994); Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, such report must be weighed against the medical and other evidence. Cf. Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006). Here, the Board finds the Veteran's statements regarding the injuries he sustained during service and his purported continuity of right shoulder symptoms since that time are not credible and, thus, cannot serve to provide a basis for a finding of service connection for right shoulder disability. The Board reiterates that the Veteran's service treatment include nothing to even suggest that he sustained any right shoulder injury. Again, an October 1953 treatment record shows that the Veteran was examined and qualified for transfer. Further, on his August 1954 discharge examination, the Veteran's upper extremities were clinically evaluated as normal. The report does not in any way indicate that the Veteran complained of right shoulder pain. It would be reasonable to assume that the Veteran would have reported such pain at that time if he was in fact experiencing it. Moreover, during at the Board hearing, he indicated that when he initially injured his shoulder during the judo match, he reported problems to the doctors. Clearly, however, the hospital only indicates that the left elbow was injured. There is simply no documentation of any complaints pertaining to the right shoulder. Again, if the Veteran had in fact reported such pain, it would most likely be documented in the clinical record. The Board finds that a Veteran's contemporaneous statements to physician or other medical professional, made in connection with treatment, are more credible than those made in furtherance of a claim for benefits. See White v. Illinois, 502 U.S. 346, 355-56 (1991) (noting that statements made for the purpose of medical diagnosis or treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive a proper diagnosis or treatment). Accordingly, the Board finds that the Veteran's more recent assertions that he suffered a right shoulder injury during service are not supported by or are simply inconsistent with the documented evidence of record, and are not credible. The Board further notes that the first objective indication of a right shoulder disability is noted in a February 2008 private medical record, which indicates that he injured his shoulder three months prior in November 2007-approximately 53 years after the Veteran's discharge from service. As there was no evidence of arthritis within one year of discharge, the in-service incurrence of arthritis may not be presumed. The Board notes that the passage of so many years between discharge from active service and the objective documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Even considering the Veteran's claim documented in a March 2008 clinical record that he experienced right shoulder problems 30 years prior while doing carpentry work, this time frame still would have been 24 years after his discharge from service. The Board finds it significant that VA treatment records prior to 2008 are completely silent with respect to any right shoulder problems. Again, if the Veteran was experiencing continuing right shoulder problems, it would be reasonable to assume that he would have reported them during the course of receiving treatment. Moreover, the Veteran filed a claim for service connection in 1995 for his left elbow. Again, if he was experiencing chronic right shoulder pain since service, it would seem that he would have also mentioned any right shoulder injury at that time. Rather, the first claim filed with respect to the right shoulder was after the documented 2007 injury. These discrepancies weigh against the Veteran's credibility as to pertinent symptomatology since service. With respect to the lay statements provided by the Veteran's son and brother, the Board points out that, like the Veteran, they are competent to report facts within their personal knowledge, to include what they have observed. However, the Veteran's son was not born until 1977, so he is not competent to report as to any firsthand knowledge of the Veteran's injuries in service or pertinent symptoms for at least 23 years after service. Moreover, the Board finds that the statement of the Veteran's brother cannot constitute competent evidence of what he observed or otherwise has first-hand knowledge; rather, it clearly relies on history provided by the Veteran, including an injury in service, which has been determined to not be credible. Thus, any statements based on the Veteran's history, in turn, cannot be deemed persuasive. Cf. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that, as a medical opinion can be no better than the facts alleged by the veteran, an opinion based on an inaccurate factual premise has no probative value). Furthermore, there is no medical evidence or opinion even suggesting a medical nexus between the right shoulder disability and the Veteran's service. On the contrary, after reviewing the claims file, taking a thorough medical history from the Veteran, and examining the Veteran, both VA examiners opined that the Veteran's current right shoulder disability was not related to service and offered a rationale for such opinions. The Board accepts these opinions as probative of medical nexus question. See, e.g., Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). Importantly, neither the Veteran nor his representative has presented or identified any contrary medical evidence or opinion-i.e., that actually supports the claim. Finally, the Board notes that, to whatever extent statements by the Veteran and/or his representative have been offered for the purpose of establishing that there exists a medical nexus between current right shoulder disability and service, such evidence provides no basis for allowance of either claim. Matters of diagnosis and etiology of the disabilities such as the one issue are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-38 (1994). As neither the Veteran nor his representative is shown to be other than a layperson without appropriate medical training and expertise, neither is competent to render a probative (persuasive) opinion on such a medical matter. See, e.g., Bostain v. West, 11 Vet. App. 124, 127 (1998), citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992). See also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). Hence, the lay assertions in this regard have no probative value. For all the foregoing reasons, the Board finds that the claim for service connection for right shoulder disability must be denied. In reaching the conclusion to deny each claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Service connection for a right shoulder disability is denied. ____________________________________________ JACQUELINE E. MONROE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs