Citation Nr: 1310696 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 08-11 216 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri THE ISSUE Entitlement to service connection for degenerative joint disease of the right shoulder. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from October 1958 to November 1980. This matter comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from a May 2007 rating decision by the St. Louis, Missouri RO, which denied the Veteran's claim of entitlement to service connection for degenerative joint disease of the right shoulder. In November 2011, the Board remanded the case to the RO for further evidentiary development. Following the requested development, a supplemental statement of the case (SSOC) was issued by the Appeals Management Center (AMC) in January 2013. For the reasons discussed below, the Board finds that there has been substantial compliance with the November 2011 remand and will proceed to adjudicate the appeal. See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). FINDING OF FACT The Veteran does not have degenerative joint disease of the right shoulder that is related to his military service. CONCLUSION OF LAW The Veteran does not have degenerative joint disease of the right shoulder that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of the information and evidence not of record that is necessary to substantiate the claim; and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has held that VCAA notice should be provided to a claimant before the initial RO decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice is provided after the initial decision, such a timing error can be cured by subsequent readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In this case, VA satisfied its duty to notify by means of letters dated in August 2006 and December 2006 from the RO to the Veteran, which were issued prior to the RO decision in May 2007. Those letters informed the Veteran of what evidence was required to substantiate the claims, and of his and VA's respective duties for obtaining evidence. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. The Board finds that the content of the above-noted letters provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. Regarding the duty to assist, the Veteran was provided an opportunity to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file, and that neither he nor his representative has identified any other pertinent evidence not already of record that would need to be obtained for a proper disposition of this appeal. It is therefore the Board's conclusion that the Veteran has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notice. The Board is aware that the Veteran's service treatment records (STRs) consist only of a portion of his service, including his enlistment and retirement examination reports. In response to two requests for the Veteran's complete STRs, the National Personnel Records Center (NPRC) responded that all records had been submitted and that they did not have any additional records. A formal finding regarding the unavailability of these records was made in January 2013 and is documented in the claims folder. The Board is satisfied that no additional effort to obtain records would be fruitful. The Veteran has been afforded a VA examination on the issue decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examination afforded the Veteran is adequate. Nieves- Rodriguez v. Peake, 22 Vet. App 295 (2008). The examination was conducted by a medical professional, who reviewed the medical records, solicited history from the Veteran and provided findings necessary to decide the claim. Accordingly, the Board finds that VA has satisfied its duty under the VCAA in apprising the Veteran as to the evidence needed and in obtaining evidence pertinent to his claim. II. Background The Veteran served on active duty from October 1958 to November 1980. The available service treatment records (STRs), including the enlistment examination in September 1958 and the retirement examination of March 1980, are completely silent with respect to any complaints, findings or treatment for a right shoulder injury or disability. Clinical evaluations of the upper extremities were normal. Of record are treatment reports from Fort Leonard Wood Army Community Hospital and the Richland Chiropractic Clinic, dated from August 1984 to February 1993. These records show that the Veteran was seen in September 1986 for complaints of a painful right shoulder of two-week duration; he denied any trauma. The Veteran was diagnosed with mild right rotator cuff injury. He was sent for physical therapy; at that time, he was given a diagnosis of muscle strain. Also of record are VA progress notes dated from April 1991 through July 1999. Those records are completely silent with respect to any complaints or clinical findings of a right shoulder injury or disorder. In a statement in support of claim (VA Form 21-4138), dated in July 2006, the Veteran indicated that he was seeking to establish service connection for arthritis of the right shoulder. The Veteran maintained that the arthritis in his right shoulder developed as a result of many hours of operating heavy construction equipment, and the severe weather to which he was subjected during field exercises while on active duty. Submitted in support of the Veteran's claim were VA progress notes dated from August 2004 through June 2005. Those records are completely silent with respect to any complaints or clinical findings of a right shoulder injury or disorder. Received in July 2006 was a treatment report from Dr. Curtis D. Mather, dated in May 2006, indicating that the Veteran was seen for consultation at the request of Dr. Emily Mebruer, for complaints of right shoulder pain that he had had for several years . He denied any injury. It was noted that the Veteran had not had any recent treatment for the shoulder. X-ray study of the right shoulder revealed significant glenohumeral arthritis and acromioclavicular joint arthritis. In a statement to Dr. Mebruer, dated in May 2006, Dr. Mather reported that the Veteran had degenerative osteoarthritis of the right shoulder, which was untreated. Dr. Mather recommended that the Veteran receive an injection. Of record are private treatment reports from St. John's Regional Heath Center dated from May 2000 through February 2009. Those records do not reflect any complaints or clinical findings of a right shoulder injury or disorder. The Veteran was afforded a VA examination in February 2012. At that time, the Veteran reported straining his right shoulder several times in service but he also experienced good recovery. He stated that he began experiencing persistent right shoulder pain in the early 1990s; he underwent numerous injections that proved to be of temporary benefit. It was recommended that he undergo surgery. On examination, the right shoulder had forward flexion to 55 degrees, with pain beginning at 50 degrees; he had abduction to 45 degrees, with pain beginning at 40 degrees. Range of motion was the same after repetitive testing. He had less than normal movement in the right shoulder after repetitive testing. He had pain on movements, tenderness, and guarding in the right shoulder. He did not have ankylosis of the right shoulder joint. Hawkin's impingement test was positive. External rotation/infraspinatus strength test was positive. It was noted that x-ray study of the right shoulder revealed degenerative joint disease. The pertinent diagnoses were rotator cuff syndrome and osteoarthrosis, right shoulder. The examiner stated that the relationship of the Veteran's current right shoulder condition to his military service cannot be determined without resort to speculation. The examiner explained that the service treatment records are incomplete, onset of documented shoulder pain was remote from service, and no specific episodes of injury in service were recounted by the Veteran, and no accidents or injuries in the post-service period are recorded. Of record is a memorandum of unavailability of Federal Records, dated in January 2013, wherein the RO determined that the active duty military service records for the period from October 1958 to January 1972 are unavailable for review. It was determined that all procedures to obtain the Veteran's records had been correctly followed, and that evidence of written and telephonic efforts to obtain the records was in the file. It was further determined that all efforts to obtain the needed information had been exhausted, that further attempts were futile and, based on those facts, the record was not available. III. Analysis Service connection may be granted for disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110. To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"--the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Holton v. Shinseki, 557 F.3d 1362 (2009). For a 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 a diagnosis including the word "chronic." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. If 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). In addition, the law provides that, where a veteran has qualifying service and arthritis become manifest 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 in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. While the disease need not be diagnosed within the presumption period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. The Veteran can attest to factual matters of which he has first-hand knowledge, such as experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a lay person is competent to identify the medical condition (noting that sometimes the lay person will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21. Vet. App. 303 (2007). After review of the evidentiary record, the Board finds that service connection is not warranted for degenerative joint disease of the right shoulder. The STRs are negative for any complaints or clinical findings of a right shoulder disorder. In fact, at the time of his separation examination in March 1980, clinical evaluation of the upper extremities was normal and the Veteran denied having a history of painful or "trick" shoulder at that time. The first post-service clinical documentation of the onset of a right shoulder disorder was in September 1986, approximately 6 years after service separation. See generally Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Even then, it was noted that he reported having such problems only over the previous two weeks; he denied any trauma or injury. In addition, while the Veteran has a current diagnosis of degenerative joint disease of the right shoulder, there is no competent evidence indicating that there is a relationship between the Veteran's current right shoulder disorder and active military service. The Veteran has not submitted any competent evidence of a nexus to service. Rather, following the VA examination in February 2012, the examiner stated that he was unable to determine whether the Veteran's current right shoulder disorder, including degenerative joint disease, was related to military service without resorting to speculation. In view of the foregoing, the Board finds that evidence sufficient to grant service connection is not of record. The VA examination report reflects that the VA examiner reviewed the Veteran's entire claims folder and the Veteran's reported history, as well as undertook a comprehensive clinical examination of the Veteran. The examiner found to no basis on which to link current disability to service. Indeed, as noted above, the Veteran reported no injury in service and even when seen after service, he did not relate a problem first shown in 1986 to his time in military service. Therefore, the Board finds that there is no competent evidence that the Veteran's right shoulder disorder was the result of disease or injury incurred in or aggravated by military service. Additionally, arthritis was not shown within a year of the Veteran's separation from active military service. 38 C.F.R. §§ 3.307, 3.309. In finding that service connection for a right shoulder disorder is not warranted based on the lack of nexus evidence, the Board is cognizant of the fact that "[l]ay testimony is competent . . . to establish the presence of observable symptomatology and 'may provide sufficient support for a claim of service connection.'" Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (quoting Layno v. Brown, 6 Vet. App. 465, 469 (1994)). Here, although the Veteran has asserted that he has experienced shoulder problems since service, when he first sought treatment for shoulder pain in September 1986, he reported the onset to be two weeks prior and made no mention of any earlier problems or treatment related to the shoulder or any in-service injury. Moreover, the Veteran specifically denied shoulder pain on his separation report of medical history. Thus, the Board finds that although the Veteran is competent to report on pain since his military service, the evidence fails to support a finding that the Veteran is credible in this regard. As to the Veteran's specific theory of service connection, the Board notes that generally etiology of dysfunctions and disorders is a medical determination. See Jandreau v. Nicholson, 492 F.3d 1372, 1374-75 (Fed. Cir 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382(Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). Here, the Veteran, as a lay person without the appropriate medical training and expertise, is not competent to relate his right shoulder disability to service, especially in light of the fact that the evidence fails to demonstrate any in-service injury or the onset of any symptoms in service. See Jandreau, supra. For the reasons set forth above, the Board finds the greater weight of the evidence is against the claim. In reaching this conclusion, 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 helpful to the Veteran. 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 degenerative joint disease of the right shoulder is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs