Citation Nr: 1309324 Decision Date: 03/19/13 Archive Date: 04/01/13 DOCKET NO. 05-06 816 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a right shoulder disorder. REPRESENTATION Appellant represented by: J. Myers Morton, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD B. Diliberto, Counsel INTRODUCTION The Veteran had active service from May 1979 to December 1994. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from a February 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which, in part, declined to reopen a claim of service connection for a bilateral shoulder disability. In July 2008, the Board reopened that claim and remanded the appeal for additional development. In April 2009, the Board denied service connection for a bilateral shoulder disability. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (hereinafter, "the Court"). Pursuant to an October 2009 Joint Motion for Remand, the Court vacated the Board's decision and remanded the matter for compliance with the terms of the Joint Motion. In September 2010, the Board granted entitlement to service connection for a left shoulder disorder. The Board also remanded the claim of entitlement to service connection for a right shoulder disorder for further development. That claim was again remanded in December 2011, this time for a hearing before a Veterans Law Judge. All of the development requested in those remands has now been completed, and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). In December 2012 the Veteran testified at a videoconference hearing before the undersigned Acting Veterans Law Judge. During that hearing the Veteran submitted additional evidence, waiving consideration of the agency of original jurisdiction. 38 C.F.R. § 20.1304. A transcript of that proceeding is available and has been associated with the claims file. The Board has reviewed the Veteran's physical claims file and the Virtual VA electronic file to insure a total review of the evidence FINDING OF FACT The Veteran does not have a right shoulder disorder that began in service or has been shown to be causally or etiologically related to service. CONCLUSION OF LAW The criteria for service connection for a right shoulder disorder have not been met. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has claimed entitlement to service connection for a right shoulder disorder. In general, service connection will be granted for disability resulting from injury or disease incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 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). The Federal Circuit recently held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, ___ F.3d ___, No. 2011-7184, 2013 WL 628429 (Fed. Cir. Feb. 21, 2013). As discussed in more depth below, the Veteran has not been diagnosed with a right shoulder disorder recognized as a chronic condition under 38 C.F.R. § 3.309(a). Accordingly, the theory of continuity of symptomatology under 38 C.F.R. § 3.303(b) is not for application here. As such, to prove service connection, the record must contain: (1) evidence of a current disability, (2) evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of injury or disease, and (3) evidence of a nexus or relationship between the current disability and the in-service disease or injury. Coburn v. Nicholson, 10 Vet. App. 427 (2006); Disabled American Veterans v. Secretary of Veterans Affairs, 419 F. 3d 1317 (Fed. Cir. 2005). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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). 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. The relevant evidence of record includes service treatment records, post-service private treatment records, VA treatment records, VA examination reports, medical treatise and both written and oral statements from the Veteran. Service treatment records are entirely negative for any findings or complaints related to any type of shoulder pain. Rather, those records show that the Veteran consistently denied having a painful or trick shoulder on his periodic and separation examinations. Additionally, the Veteran's separation physical examination report notes that the Veteran's upper extremities were found to be normal. The Veteran contends that he did have right shoulder pain in service, but that he did not seek medical treatment. He has also asserted that he reported right shoulder pain at the time of his service discharge examination, but that the examiner told him that his service would be extended until he could undergo further examination and advised him to simply file a claim with VA upon his release from service. The Veteran first filed a claim asserting entitlement to service connection for bilateral shoulder pain in January 1995, very shortly after his release from active duty. At that time, he characterized this as "arthritis of both shoulders." The Veteran was afforded a VA examination in support of his claim in February 1995. During that examination the Veteran reported discomfort in his shoulders when trying to work overhead. He stated that he had no injury to either shoulder in service. Physical examination revealed abduction and forward flexion to 180 degrees and internal and external rotation to 90 degrees. The Veteran did not complain of pain. The examiner observed some fine crepitus and diagnosed the Veteran with bilateral shoulder arthralgia. VA treatment records from June 1995 also show treatment for complaints of bilateral shoulder pain. In February 1996 the Veteran was afforded an additional VA examination. During that examination the Veteran reported that his shoulders were still bothering him, and that they hurt worse in the morning, but get better as the day goes on. He stated that the pain comes across from his neck and upper shoulders. The examiner stated that the Veteran seemed to have a muscular-type pain. Range of motion was normal and the Veteran was not particularly tender on his shoulders. The Veteran did report some subjective pain in raising his shoulders straight overhead. The examiner noted that radiographic imagery was unremarkable. His impression was chronic shoulder pain probably muscular, of undetermined etiology. Subsequent VA treatment records from May 2000 indicate continued reports for right shoulder pain. Records from January 2002 also show reports of shoulder pain. In his February 2005 Substantive Appeal (VA Form 9) the Veteran argued that he was never given a proper diagnosis for his shoulder pain and has continued to complain about this condition. He asserted that he was treated for the claimed condition within one year after his discharge from service. In April 2005 the Veteran underwent an additional VA examination in support of his claim. During that examination the Veteran reported bilateral shoulder pain, worse on the right than on the left. Physical examination of the right shoulder revealed forward flexion to 160 degrees, abduction to 160 degrees with pain after 140 degrees, external rotation to 70 degrees and internal rotation to 90 degrees. Radiographic imagery was entirely normal. The examiner diagnosed the Veteran with right shoulder pain that could possibly be due to a small rotator cuff tear given the distribution of the Veteran' pain. In a May 2005 addendum the examiner stated that it was at least as likely as not that the current shoulder disability manifested by the Veteran was related to shoulder complaints shown on the February 1995 VA examination given the apparently continuous and progressive problems manifested in the various examination since that time. The examiner did not specify which shoulder he was referring to in providing this opinion. In June 2005 the Veteran submitted a written statement from his wife wherein she stated that they had been married for 17 years and that the Veteran has always complained of shoulder pain. She reported that the Veteran injured himself in 1993 while playing softball and that he could not lift his arm about his shoulder. In March 2006 the Veteran submitted a letter from a VA physician which stated that "[h]is [sic] has started to develop shoulder pain while in the Navy. He originally hurt his left shoulder in 1993. He was treated conservatively after the injury as a shoulder strain." That physician noted that she had treated the Veteran since 2004, and noted he had been diagnosed with bilateral shoulder impingement syndrome with bicepital tendonitis. In a September 2008 submission that provider indicated her opinion that it was more likely than not that the Veteran's bilateral shoulder conditions were related to his military service. In so finding, she stated that "[p]t had injured his shoulders while in the military with documentation. He has had trouble with them ever since." VA treatment records from September 2007 include an MRI of the right shoulder, which shows a partial tear of the supraspinatus tendon and degenerative joint disease. In August 2008 the Veteran was afforded another VA examination. During that examination the Veteran reported that he injured his right shoulder on active duty in 1982 while serving on a tender ship and lifting charging guns. The examiner diagnosed the Veteran with bilateral shoulder pain. The examiner noted that he could not find documentation of a shoulder injury in service and that the Veteran said that he did not seek treatment at the time of his injuries due to his stoic personality. The Veteran did report having mentioned his shoulder injuries during his discharge examination, but the examiner observed that this was not noted on the separation examination report. The examiner found that he could not provide an opinion on the etiology of the Veteran's shoulder disorder without resorting to mere speculation. Subsequent VA treatment records show continued treatment for bilateral shoulder pain. In an October 2008 letter the Veteran stated that he injured his shoulder in service carrying heavy loads up and down ladders onboard submarines. He reported having told the physician who conducted his separation examination that he had pain in both shoulders. He stated that his examiner told him to wait until he got out of service to seek treatment because reporting those problems would delay his release from service. He also indicated that he has had consistent pain in his shoulder since that time. In an April 2009 statement the Veteran stated that his shoulder pain began in service, that he complained of that pain just two months after his release from active service and that he still has the same complaints except that they have become more severe. The Veteran repeated his assertion that he reported shoulder pain during his separation examination and that he was told by the physician who conducted that examination that documenting that complaint would delay his release from service. The Veteran reported several in-service injuries to his shoulders. He also stated did not know what caused his nerve impingement, but that it began early during his period of service. In a May 2010 statement the Veteran reported that he did not injure his back, shoulders or neck prior to his period of service. He stated that part of his duties in service required moving charging guns in and out of the ejection chamber of missile tubes and that he often had to carry these guns and enter the tubes. The Veteran indicated that in 1982 or 1983 he was carrying one of the charging guns and had pain in his shoulder when he was finished. He also reported that he often bumped into things while in service. He noted that he now has nerve impingement under his collar bone which causes bilateral shoulder pain, neck pain and stress headaches. He stated that he never went to a doctor in service because he thought it would get better and that he was told not to mention his injuries on his separation examination because it would delay his release from service. The Veteran's most recent VA examination was performed in January 2011. During that examination the Veteran stated that his right shoulder pain began in approximately 1985 and that it has progressively worsened since that time. On physical examination the examiner noted crepitus and tenderness, as well as objective evidence of painful motion. The examiner diagnosed the Veteran with a history of a remote right shoulder partial supraspinatus tendon tear with residual supraspinatus tendonitis, limitation of motion and degenerative joint disease. She found that she could not render an opinion as to whether it is at least as likely as not that any identified right shoulder disability had its onset in service or was otherwise related to service without resorting to mere speculation. In so noting, she stated that "the veteran's appointment in 1995 indicates shoulder pain but without notably decreased range of motion that would indicate rotator cuff condition found years later." She also observed that impingement syndrome was not diagnosed until several years later and that she could not conclude that this was caused in service or was the same condition as in 1995 without resorting to mere speculation. Private treatment records from June 2011 to September 2012 show continued treatment for bilateral shoulder pain. Therein, the Veteran stated that he has had this pain since the 1980s. The evaluating provider stated that the majority of the Veteran pain was likely emanating from probable small rotator cuff tears, but that it may also be due to subacromial impingement. Records from September 2012 indicate the provider's opinion that the Veteran has a partial thickness rotator cuff tear that is likely the etiology of his symptoms, and that the longhead of the biceps tendon may also be involved. In December 2012 the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge. During that hearing the Veteran stated that during his separation examination he informed the physician that he had neck pain and bilateral shoulder pain. He indicated that this examiner told him not to report that pain because it would delay his release from service. He stated that he sought treatment for his shoulder shortly after being released from active service, but that the condition was not as bad because he was not working at that time. He stated that he has been diagnosed with nerve impingement and a rotator cuff tear and voiced his belief that the nerve impingement is the cause of most of his pain. After a thorough review of the entirety of the evidence of record the Board finds that entitlement to service connection for a right shoulder disorder is not warranted. While the evidence does reflect that the Veteran has a current right shoulder disability, the preponderance of the evidence is against a finding that there is a nexus between his current disability and an in-service event or injury. In response to the Veteran's assertions, VA has obtained two separate VA examinations to determine whether there is a link between the Veteran's current right shoulder disorders and his period of active service. Both examiners stated that they could not opine on the presence of such a link without resorting to mere speculation and provided adequate rationale for their inability to do so. This is so because it is clear from the detailed examination reports in this case that the examiners evaluated the "procurable and assembled data" and provided reasons for their opinions that showed his consideration of all pertinent and available medical facts, including the Veteran's statements. Jones v. Shinseki, 23 Vet. App. 382 (2010). The examiners had done all that reasonably should be done to become informed about the case. This is one of the types of circumstances that the Court recognized in Jones as a valid basis for why an opinion could not be rendered without resorting to mere speculation. In contrast, the only competent evidence supporting an etiological relationship is an opinion submitted by the Veteran from one of his VA treating physician that proposes a link between service and the Veteran's current shoulder disability on supposed documentation of an in-service shoulder injury. It is apparent that this provider rendered that opinion without reviewing the Veteran's claims file, as there is no such documentation. Accordingly, the Board finds that this medical opinion lacks probative value. An opinion based on an inaccurate history has no probative value. See Knightly v. Brown, 6 Vet. App. 200 (1994). Finally, the Veteran has argued that his condition was manifest to a compensable degree within one year after service and that therefore service connection is warranted on a presumptive basis. The evidence of record fails to establish such a basis for award as the Veteran was not diagnosed with a chronic condition (such as arthritis) that manifested itself to a compensable degree within one year after service. 38 C.F.R. § 3.303(d). In so finding, the Board notes that the February 1995 VA examination noted no limitation of shoulder motion and no x-ray evidence of arthritis. The Board does note that the Veteran is competent to testify as to the events he experienced in service, including having experienced pain in his shoulder in service and since that time. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the Veteran is not competent to provide evidence as to more complex medical questions like the etiology of his current right shoulder disorder. The Veteran has not been shown to possess the requisite medical training, expertise, or credentials needed to render a diagnosis or a competent opinion as to medical causation. Nothing in the record demonstrates that the Veteran received any special training or acquired any medical expertise in evaluating orthopedic conditions. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed.Cir.2012). Accordingly, this lay evidence lacks probative value. A claimant has the responsibility to present and support a claim for benefits under laws administered by the VA. 38 U.S.C.A. § 5107(a), and the Veteran was clearly advised of the need to submit medical evidence of the existence of the disability claimed and a relationship between that disability and his period of service. The Board has considered application of the benefit-of-the doubt doctrine under 38 U.S.C.A. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. The most persuasive and probative evidence of record fails to demonstrate that the Veteran's right shoulder disorder is related to his period of active service. In sum, the Board finds that there is a preponderance of evidence against a grant of service connection for a right shoulder disorder. As there is a preponderance of evidence against the claim, the benefit-of-the-doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Accordingly, the Board finds that service connection is not warranted. Duty to Assist The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2011). The notification obligation in this case was met by way of letters from the RO to the Veteran dated in September 2002, February 2004 and August 2008. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the Veteran as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances of this case. In addition, the Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal and has not argued that any errors or deficiencies in the accomplishment of the duty to notify or the duty to assist have prejudiced the Veteran in the adjudication of his appeal. The Veteran has been afforded several VA examinations on the issue under review during the course of his appeal. The reports from those examinations reflect that the examiners reviewed the Veteran's medical records, recorded his current complaints, conducted appropriate physical examinations and rendered diagnoses and opinions consistent with the remainder of the evidence of record and pertinent to the rating criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). ORDER Entitlement to service connection for a right shoulder disorder is denied. ____________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs