Citation Nr: 1311207 Decision Date: 04/04/13 Archive Date: 04/19/13 DOCKET NO. 06-30 639 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a left shoulder disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Suzie S. Gaston, Counsel INTRODUCTION The Veteran served on active duty from July 1982 to November 1982 and May 2004 to March 2005, with additional service in the Army Reserves. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2005 rating decision, by the Roanoke, Virginia, Regional Office (RO), which denied the Veteran's claim of entitlement to service connection for arthritis of the shoulders. The Veteran perfected a timely appeal to that decision. On October 9, 2008, the Veteran appeared and offered testimony at a Board hearing in Washington, D.C. A transcript of that hearing is also of record. In August 2009, the Board recharacterized the issue as service connection for a bilateral shoulder disorder and remanded the case to the RO for further evidentiary development of the claim. Following the requested development, a supplemental statement of the case (SSOC) was issued in November 2010. In an August 2011 decision, the Board denied the claim of service connection for a right shoulder disorder and remanded the issue of service connection for a left shoulder disorder for further evidentiary development. Following the requested development, an SSOC was issued in August 2012. The Board finds there has been substantial compliance with the past remand. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand 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 A left shoulder disorder was not manifested in service; arthritis of the left shoulder was not manifested in the first post-service year; and a left shoulder disorder is not attributable to the Veteran's period of military service or any incident thereof. CONCLUSION OF LAW The Veteran does not have a left shoulder disorder that is the result of disease or injury incurred in or aggravated by active military service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1137, 5103, 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). If, however, 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 March 2005 and July 2005 from the RO to the Veteran which were issued prior to the November 2005 decision. Additional letters were issued in June 2006, May 2008, August 2009, October 2009, and September 2011. Those letters informed the Veteran of what evidence was required to substantiate the claim decided herein and of her and VA's respective duties for obtaining evidence. In addition to the notification letters discussed above, in a conference held prior to the October 2008 Board hearing, the undersigned Veterans Law Judge discussed the issue on appeal with the Veteran and her representative, including the type of evidence required in order to prevail in the claim. See e.g. Bryant v. Shinseki, 23 Vet. App. 488 (2010). The Veteran and her representative acknowledged full understanding of all matters discussed. Additionally, the record was held open for sixty days following the hearing to allow the appellant the opportunity to submit additional evidence. The Board finds that the content of those letters 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. She was provided an opportunity at that time to submit additional evidence. It also appears that all obtainable evidence identified by the Veteran relative to the claims decided by this decision has been obtained and associated with the claims file, and that neither she nor her representative has identified any other pertinent evidence, not already of record, that would need to be obtained for a proper disposition of these claims. It is therefore the Board's conclusion that the Veteran has been provided with opportunity to submit evidence and argument in support of her claims, and to respond to VA notices. The Veteran has been afforded VA examinations on the issue decided herein. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The examinations were conducted by medical professionals who reviewed the medical records, solicited history from the Veteran, and provided information necessary to decide the claim. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008). Accordingly, the Board finds that VA has satisfied its duty to notify and assist the Veteran in apprising her as to the evidence needed, and in obtaining evidence under the VCAA. Therefore, no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. II. Factual background. The service treatment reports (STRs) for the Veteran's first period of active duty, from July 1982 to November 1982, are negative for any complaints or abnormalities pertaining to the left shoulder. STRs corresponding to the Veteran's periods of service in the Reserves and National Guard are similarly negative for complaints or abnormalities pertaining to the left shoulder. At periodic physical examinations conducted in July 1986, January 1989, September 1993, May 1998, February 1999, and April 2004, the Veteran specifically denied having or ever having had a painful or "trick" shoulder. On each occasion, physical examination of her upper extremities was normal. STRs corresponding to the Veteran's second period of active duty are also negative for complaints or abnormalities pertaining to a left shoulder disorder. In November 2004, the Veteran submitted an original application for VA compensation benefits, seeking service connection for multiple orthopedic disabilities. Her application, however, is silent for any mention of a left shoulder disability. In conjunction with her claim, the Veteran was afforded a VA orthopedic examination in January 2005 at which time she reported numerous orthopedic complaints; however, the examination report does not reflect any complaints or clinical findings pertaining to a left shoulder disorder. In February 2005, the Veteran submitted a claim of service connection for additional disabilities, including arthritis in her shoulder. In connection with her claims, the Veteran was afforded a fee basis examination in April 2005. At that time, the Veteran reported that she developed a sudden aching in different joints of her body, including her shoulders in February 2005. She claimed that she saw a physician at Fort Dix (a Dr. O'D) who informed her that "her body was breaking down" and that she just had arthritis. Since that time, the Veteran reported that she had been experiencing a fleeting, aching, sharp pain three to four times daily in various joints, including the shoulders, which lasted a few minutes and then resolved without medication. On objective examination, however, the Veteran's shoulders were within normal limits, exhibiting normal range of motion with no pain, fatigue, weakness, lack of endurance or incoordination. The diagnoses included multiple joint pains of the wrists, hands, shoulders, elbows and feet with normal range of motion and no evidence of pathology of the joints. Subsequent X-ray studies of the right and left shoulder were normal, with no indication of fracture or other significant bone, joint, or soft tissue abnormality, including arthritis. In a subsequent September 2005 addendum to the April 2005 examination report, the examiner clarified that, in regards to the Veteran's multiple joint pains, including of the shoulders, there was no pathology from which a diagnosis could be rendered. VA clinical records show that the Veteran sought treatment for left shoulder pain in October 2005. She reported that she had sustained a left rotator cuff tear in a fall on May 25, 2005, shortly after her separation from active service. It was noted that an MRI performed in June 2005 had confirmed a left supraspinatus partial tear. The pertinent diagnoses included a left rotator cuff injury. Received in March 2006 were post active duty National Guard medical records, which show that the Veteran underwent a medical evaluation in June 2005, at which time she complained of chronic pain in the low back, right knee, and right foot, as well as acute left shoulder pain since falling down the stairs on May 25, 2005. The impressions included acute shoulder strain, anticipate full recovery. During a February 2006 New Jersey National Guard assessment, the Veteran reported that she was unable to take a physical fitness test, as she was unable to move with a fighting load at least 2 miles, unable to construct an individual fighting position, unable to do 3 to 5 second rushes, and was not authorized to lift more than 5 pounds. She was found to be medically unfit and non-deployable and she was medically discharged from the National Guard. VA clinical records show that in February 2006, the appellant had a physical therapy evaluation during which she relayed numerous orthopedic complaints, including left shoulder pain, which she claimed had been present "for several years." It was noted that the appellant would benefit from a regular exercise program. In September 2006, the Veteran was seen for evaluation regarding whether she could return to work for both military and civilian duty. It was noted that she had been released from military duty due to chronic low back pain in March 2005. She also had subsequently had a left rotator cuff tear injury, which did respond to physical therapy. In August 2007, it was noted that the Veteran had sustained a left rotator cuff injury in May 2005, as documented on a June 2005 MRI. It was noted that she was status post physical therapy and was "recovered clinically." It was also noted that the Veteran had passed a physical agility test and could return to full duty as a jail officer. In March 2008, the appellant was again afforded a fee basis examination at which time she told the examiner that she had served in the Army for 24 years, from 1982 to 2006. She claimed that she had had right shoulder pain since 2004, but denied a history of injury or trauma. No complaints pertaining to the left shoulder were recorded. In reviewing the claims folder, the examiner noted that service treatment records did not document shoulder complaints prior to her separation. He further noted that post-service records showed a rotator cuff injury in May 2005 and that January 2008 X-ray studies had shown mild AC degenerative changes. The examiner noted that current X-ray findings were noted to be within normal limits. The diagnosis was right shoulder impingement syndrome with some AC arthrosis also. The examiner did not report any findings regarding the left shoulder. Received in March 2008 was a copy of a determination from Social Security Administration (SSA), indicating that the Veteran had been denied a claim for disability benefits. In her application for benefits, in April 2007, the Veteran reported falling and injuring her shoulder following her release from active duty. In a notice of reconsideration of claim in January 2008, it was determined that the Veteran had had therapy for a rotator cuff problem which was no longer restrictive. The Veteran claimed that he was entitled to disability benefits as a result of a mild back disorder and osteoarthritis and allied disorders. Attached to the decision were treatment reports considered in reaching the decision, dated from February 2005 through November 2007. These records show that the Veteran received treatment for a left shoulder disorder, diagnosed as a left rotator cuff injury. An X-ray study of the left shoulder, performed in April 2005, revealed no fracture or other significant bone, joint or soft tissue abnormality; the study was negative. An MRI of the left shoulder in June 2005 revealed a small partial-thickness tear involving the bursa surface of the supraspinatus tendon. Records from the Social Security Administration (SSA) include a January 2008 disability determination to the effect that the appellant's multiple claimed disabilities did not prevent her from working. The decision noted that the appellant contended that she was unable to work due to multiple disabilities, including numerous orthopedic disabilities, a sleep disorder, high blood pressure, depression, as well as a shoulder problem. Records received from SSA also include a January 2008 residual functional capacity determination noting that that medical evidence established that the appellant's medically determinable impairments included a history of left rotator cuff small partial thickness tear. At her personal hearing in October 2008, the Veteran testified that she realized that she was developing arthritis in her neck and shoulders before her discharge from service; she started having problems while training in the cold. The Veteran indicated that she began experiencing problems with her shoulders in November 2004; she stated that the army doctors told her that she was getting old and used the word "degenerative" to describe her condition. The Veteran stated that she sought treatment for her shoulders after service. Received in October 2009 were VA progress notes dated from January 2008 through October 2009 which show that the Veteran received treatment for a chronic right shoulder disorder. These records do not reflect any complaints of or treatment for a left shoulder disorder. The Veteran was afforded a VA examination in November 2009. At that time, the Veteran reported falling and landing on her back and right shoulder in May 2005; she developed pain and could not move that shoulder. She was diagnosed as having a rotator cuff tear of the right shoulder. The Veteran reported that the left shoulder started causing pain in the past year; she stated that she felt it was due to getting older. X-ray study of the shoulders revealed mild bilateral AC joint degenerative changes. The pertinent diagnosis was left shoulder, mild bilateral AC joint degenerative changes. The examiner stated that it was less likely as not that the left shoulder strain was caused by or a result of military service. The examiner explained that the Veteran had only one mention of shoulder problems in the medical records documented in April 2005. At that time, she had a normal range of motion of the left shoulder, but also asserted that she had pain in the shoulder capsule. The examiner stated that, because of the examination being so closely completed after active military service, this could indicate that there was a left shoulder injury during active duty military service. Received in November 2010 were VA progress notes dated from November 2009 through September 2010. These records do not reflect any complaints or treatment for a left shoulder disorder. The Veteran was afforded another VA examination in September 2011. She reported that, during transition leave in May 2005, she went home and fell downstairs at top of the stairs and landed on the right shoulder. The Veteran indicated that x-ray of the shoulder revealed dislocation of the rotator cuff of the right shoulder; she lost her job with the Philadelphia police department due to not being able to work due to a painful right shoulder. X-ray of the shoulders revealed mild bilateral acromioclavicular degenerative joint disease. The pertinent diagnoses were right shoulder rotator cuff and degenerative joint disease of the shoulders. The examiner stated that the claimed condition was at least as likely as not incurred in or caused by the claimed in-service injury, event, or illness. The examiner noted that the Veteran stated that it was not her left shoulder but her right shoulder that suffered a rotator cuff problem from the fall at home in May 2005, two months after her release from active duty in March 2005; physical therapy had not resolved the problem, and it became chronic. In August 2012, the Veteran's claims folder was referred to a medical examiner for review and an opinion regarding the etiology of the Veteran's left shoulder disorder. The examiner noted that the enlistment physical dated in May 1982 was negative for musculoskeletal problems. The examiner stated that his medical opinion is based upon review of the claims file including the active health records, the VA computerized health records, the VA contract examinations and the compensation and pension examinations for shoulder and arm condition conducted in September 2011, as well as the lay statements of the Veteran. The examiner stated that it was his medical opinion that it is less likely than not that any current left shoulder disability identified on the examination is causally related to the Veteran's period of active duty from May 2004 to March 2005 or any incident therein, as opposed to a post-service cause, including the May 2005 injury which resulted in a left rotator cuff tear. The examiner explained that the Veteran's statements to the effect that when she was getting ready to be discharged from period of active duty she developed sudden aching in different joints of her body, including the left shoulder cannot be supported with evidence from the active duty health records available. He noted that Hampton VAMC vista electronic documentation of progress note dated September 4, 2007, completed by Helena Amare is the most pertinent record with history and examination, with assessment of left rotator cuff injury in May 2005. III. Legal Analysis. Service connection is warranted 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.A. §§ 1110, 1131. To establish compensation for a present disability, there must be: "(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). Service connection will be presumed for certain chronic diseases, such as arthritis, if they were manifest to a compensable degree within the year after active service. That presumption is rebuttable by probative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). Although the disease need not be diagnosed within the presumptive 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. 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). Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d. 1372 (2007); see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. After review of the evidentiary record, the Board finds that the preponderance of the evidence is against the Veteran's claim. In this regard, the Board notes that the Veteran's STRs, including those from her first period of active duty, as well as those from her second period of active duty from May 2004 to March 2005, are negative for complaints or abnormalities pertaining to her left shoulder. In addition, STRs corresponding to the Veteran's period of service in the Reserve and National Guard are similarly negative for complaints or abnormalities pertaining to her left shoulder. Indeed, at periodic physical examinations conducted on multiple occasions between July 1986 and April 2004, the Veteran specifically denied having or ever having had a painful or "trick" shoulder and on each occasion, physical examination of her upper extremities was normal. In addition to the silent STRs, a left shoulder disability, including arthritis, was not diagnosed in the year following the Veteran's discharge from active service. On the occasion of her initial VA examination in January 2005, although the Veteran reported numerous orthopedic complaints, the examination report does not reflect any clinical findings pertaining to a left shoulder disorder. Similarly, during an April 2005 VA examination, the Veteran reported that she had been experiencing a fleeting, aching, sharp pain three to four times daily in various joints, including the shoulders, which lasted a few minutes and then resolved without medication. On objective examination, however, the Veteran's shoulders were within normal limits, exhibiting normal range of motion with no pain, fatigue, weakness, lack of endurance or incoordination. The diagnoses included multiple joint pains of the wrists, hands, shoulders, elbows and feet with normal range of motion and no evidence of pathology of the joints. Subsequent X-ray studies of the right and left shoulder were normal, with no indication of fracture or other significant bone, joint, or soft tissue abnormality, including arthritis. The Board acknowledges that the record indicates that the Veteran was diagnosed as having a left rotator cuff tear in June 2005; however, the evidence does not show that his current left shoulder disorder is related to military service. The Veteran has been afforded a VA examination in connection with his claim; the examiner provided a negative nexus opinion. Significantly, following a VA examination in November 2009, the examiner stated that it is less likely as not that the left shoulder strain was caused by or a result of military service. The claims folder was reviewed by another VA examiner in August 2012, who opined that it is less likely than not that any current left shoulder disability identified on the examination is causally related to the Veteran's period of active duty from May 2004 to March 2005 or any incident therein, as opposed to a post-service cause, including the May 2005 injury which resulted in a left rotator cuff tear. The examiner explained that the Veteran's statements to the effect that, when she was getting ready to be discharged from period of active duty, she developed sudden aching in different joints of her body, including the left shoulder, is not supported by evidence from the active duty health records available. He noted that Hampton VAMC vista electronic documentation of progress note dated September 4, 2007, completed by Helena Amare is the most pertinent record with history and examination, with assessment of left rotator cuff injury in May 2005. The Board finds this VA medical opinion persuasive and assigns it significant probative weight. The opinion was rendered by a qualified medical professional who has the clear expertise to opine on the matter at issue in this case. In addition, the examiner addressed the Veteran's contentions and reportedly based the opinion on a review of the claims folder, including the STRs. The examiner also provided a rationale for his conclusion, which the Board notes is consistent with the probative evidence of record. In addition, there is no evidence that any arthritis of the left shoulder was manifested during the applicable one-year presumptive period after separation from active military service. Further, there is no radiographic evidence of arthritis during service or within the year following her discharge. In fact, arthritis of the left shoulder was not diagnosed until January 2008. As for the Veteran's statements and testimony, relating her current left shoulder disorder to service, although the Veteran is competent to describe symptoms pertaining to her claimed disability, the question involved is one of medical causation, and competent medical evidence is required to substantiate the claim. A lay person is not qualified through education, training, and expertise to offer an opinion on a medical diagnosis or on medical causation. 38 C.F.R. § 3.159; Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is no evidence showing, and the Veteran does not assert, that she has medical training to provide competent medical evidence as to the etiology of the left shoulder disorder. Here, the Board finds her assertions to be of less value than the contemporaneous records during service and the August 2012 VA examiner's opinion. Although the evidence of record shows that the Veteran has a left shoulder disorder, including degenerative joint disease, the Board finds that the more convincing evidence shows that her disability is not attributable to military service. The Board has considered the benefit-of-the-doubt doctrine, but finds that the record does not provide even an approximate balance of negative and positive evidence on the merits. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, on the basis of the above analysis, and after consideration of all the evidence, the Board finds that the preponderance of the evidence is against the claim of service connection for a left shoulder disorder. The evidence does not establish that the Veteran had a chronic left shoulder disorder during active service or that a current left shoulder disorder, including arthritis, is otherwise related to active service. Service connection for a left shoulder disorder is denied. ORDER Service connection for a left shoulder disorder is denied. ____________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs