Citation Nr: 1311588	
Decision Date: 04/08/13    Archive Date: 04/19/13

DOCKET NO.  07-38 030A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUE

Entitlement to service connection for a left shoulder disability.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A. Cryan, Counsel


INTRODUCTION

The Veteran served on active duty from April 1959 to May 1963.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.  

In January 2012, the Board remanded the claim for additional development.  


FINDING OF FACT

The Veteran does not have a left shoulder disability which is attributable to active duty service.


CONCLUSION OF LAW

The Veteran's left shoulder disability is not the result of disease or injury incurred in or aggravated during active service.  38 U.S.C.A. §§ 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Upon receipt of a substantially complete application, VA must notify the claimant and any representative of any information, medical evidence, or lay evidence not previously provided to VA that is necessary to substantiate the claim.  The notice must:  (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide.  38 U.S.C.A. §§ 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.159 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  If VA does not provide adequate notice of any of element necessary to substantiate the claim, or there is any deficiency in the timing of the notice, the burden is on the claimant to show that prejudice resulted from a notice error, rather than on VA to rebut presumed prejudice.  Shinseki v. Sanders, 129 S.Ct. 1696 (2009). 

The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claim with an adjudication of the claim by the RO subsequent to receipt of the required notice.  The record does not show prejudice to the appellant, and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Specifically, the Veteran was notified in letters dated in March 2006, April 2007, December 2008, and January 2012.  

The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

Thus, VA has satisfied its duty to notify the appellant and had satisfied that duty prior to the adjudication in the May 2012 supplemental statement of the case.  Overton v. Nicholson, 20 Vet. App. 427 (2006) (Veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless).  

The Board also finds that the duty to assist requirements have been fulfilled.  All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained.  The appellant has not referred to any additional, unobtained, relevant, available evidence.  VA has obtained an examination with respect to the claim.  Thus, the Board finds that VA has satisfied the duty to assist provisions of law.  No further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in development.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2012).  

In the alternative, where evidence, regardless of its date, shows that a Veteran had a chronic condition in service, or during an applicable presumptive period, and still has that condition, service connection can be granted for that chronic disability.  The evidence must be medical unless it relates to a condition where lay observation is competent.  38 C.F.R. § 3.303(b) (2012).

If chronicity is not applicable, service connection may still be established if the condition is noted during service or during an applicable presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates the present condition to that symptomatology.  Savage v. Gober, 10 Vet. App. 488 (1997).  

Generally, service connection requires (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury.  Pond v. West, 12 Vet. App. 341 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995).

The Veteran's service medical records show that he was treated in service for a report of a painful left shoulder in August 1961.  There was no swelling, redness or heat and the Veteran had full range of motion.  There was no fracture noted although there was no reference to x-rays being obtained.  The examiner indicated that there was no emergency and no disease found.  

Private treatment records show that the Veteran received physical therapy for left shoulder pain in January, March, and May 1991.  A specific diagnosis was not provided at those times.  
VA outpatient treatment reports dated from January 1974 to May 2012 reveal a report of left upper trapezius muscle spasm in January 1994 with 5/5 muscle strength of the left shoulder.  The Veteran was seen for chronic low back pain at that time.  In September 2006 and November 2009, the Veteran reported pain in his shoulder.  The Veteran was noted to use Tramadol to treat shoulder pain in January and February 2010.  In May 2012, shoulder arthralgia was noted as one of the Veteran's chronic problems.  

At a February 2012 VA examination, following a review of the claims file and physical examination of the Veteran, the examiner diagnosed left shoulder arthralgia.  The Veteran indicated that he was unsure how he injured his shoulder, but that he believed a fall caused his condition and that it was related to service.  The examiner indicated that the claimed left shoulder disability was less likely as not incurred in or caused by service.  The examiner's rationale was that the medical records do not show evidence of a left shoulder disability during service or in the years after service and the first evidence of treatment was not until the 1980s.

In considering the evidence of record and the applicable laws and regulations, the Board concludes that the Veteran is not entitled to service connection for a left shoulder disability.

The Board acknowledges that the Veteran is competent to report that he experienced left shoulder pain since service.  Lay testimony is competent to establish the presence of observable symptomatology.  Barr v. Nicholson, 21 Vet. App. 303 (2007); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  However, the Veteran's opinion that his left shoulder disability is related to his active duty service is insufficient to provide the requisite etiology of the current left shoulder disability because that matter requires medical expertise.  A lay person is generally not capable of providing opinions on matters requiring medical knowledge, such as the condition causing or aggravating the symptoms.  38 C.F.R. § 3.159(a)(1) (2012); Duenas v. Principi, 18 Vet. App. 512 (2004); Bostain v. West, 11 Vet. App. 124 (1998); Stadin v. Brown, 8 Vet. App. 280 (1995); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).  Therefore, his statements regarding his left shoulder disability being related to his active duty service are not competent as he is not medically qualified to provide evidence on a matter requiring medical expertise, such as an opinion as to etiology. 

The only competent medical opinion of record, that of the February 2012 VA examiner, found that it was less likely than not that the Veteran's current left shoulder disability was caused by or as a result of the Veteran's active duty service.  That opinion is more probative as to the etiology of the Veteran's left shoulder disability as the examiner reviewed the entire claims file and provided a rationale to support the opinion based on that examiner's medical training and expertise.  Consequently, the Board finds that service connection is not warranted because the preponderance of the medical evidence of record is against a finding that a left shoulder disability is etiologically linked to the Veteran's active duty service. 

Accordingly, the Board finds that the preponderance of the evidence is against the claim for service connection for a left shoulder disability and the claim is denied.  38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Entitlement to service connection for a left shoulder disability is denied.  



____________________________________________
HARVEY P. ROBERTS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs