Citation Nr: 1311901 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 06-21 095 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a left shoulder disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. B. Yantz, Counsel INTRODUCTION The Veteran had various periods of active duty for training (ACDUTRA) in the United States Army Reserves, including on September 8, 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In August 2007, the Veteran testified at a hearing before a Decision Review Officer at the RO. A transcript of this hearing is associated with the claims file. In June 2009 and December 2010, the Board remanded this case for further evidentiary development. In October 2012, the Board sought an advisory medical opinion from the Veterans Health Administration (VHA). Also in December 2010, the Board remanded the issue of entitlement to service connection for a skin disorder. In a May 2012 rating decision by the Appeals Management Center (AMC), service connection was granted for arsenical keratoses and granuloma annulare of the bilateral hands, and for acanthosis nigricans. As that decision represents a full grant of benefits sought with regard to a skin disorder, such issue is no longer a part of the current appeal. The Board notes that it has reviewed both the Veteran's physical claims file and "Virtual VA" (VA's electronic data storage system) to ensure that the complete record is considered. Additional documents pertinent to this appeal in Virtual VA have been printed and associated with the physical claims file. FINDING OF FACT The Veteran's current left shoulder disability first manifested in the line of duty during ACDUTRA, and has persisted since that time. CONCLUSION OF LAW The criteria for service connection for a left shoulder disability have been met. 38 U.S.C.A. §§ 101(22) and (24), 1110, 1131, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.1, 3.6, 3.102, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Given the Board's favorable disposition to grant the claim for service connection for a left shoulder disability, the Board finds that no discussion of VCAA compliance is necessary at this time; any notice defect or duty to assist failure is harmless. Pertinent Laws and Regulations Active service includes any period of ACDUTRA during which the individual was disabled from a disease or an injury incurred in the line of duty, or a period of inactive duty training during which the Veteran was disabled from an injury incurred in the line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a). Further, ACDUTRA includes full-time duty in the Armed Forces performed by the Reserves for training purposes. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). Inactive duty training includes duty prescribed for the Reserves. 38 U.S.C.A. § 101(23)(A). Reserves includes the National Guard of the United States. 38 U.S.C.A. § 101(26), (27). Duty, other than full-time duty, performed by a member of the National Guard of any State, is considered to be inactive duty training. 38 C.F.R. § 3.6(d)(4). Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of: (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, 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 the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, with respect to the claim. Service treatment records document that the Veteran injured his left shoulder twice while serving in the United States Army Reserves. The first injury occurred on June 20, 1992, when the Veteran slipped and fell while trying to climb into his vehicle. A service treatment record reflects that he was examined and assessed with a soft tissue injury of the left shoulder. An accompanying Statement of Medical Examination and Duty Status (DA Form 2173) documented that he was treated first at an Air Force Base medical center and then at a private hospital. The appropriate box on the DA Form 2173 was checked to indicate that the June 1992 left shoulder injury was considered to have been incurred in the line of duty. The Board notes that there is no documentation currently of record to verify that the Veteran was serving on ACDUTRA on June 20, 1992. The second injury occurred on September 8, 2001, when the Veteran slipped and fell on the floor of a gas station while en route to Fort Stewart. An accompanying Statement of Medical Examination and Duty Status (DA Form 2173) documented that he was treated immediately at a civilian hospital and then had emergency surgery for the "severe left shoulder injury" he had sustained. The appropriate box on the DA Form 2173 was checked to indicate that the September 2001 left shoulder injury was considered to have been incurred in the line of duty. The Board notes that the Veteran was serving on a verified period of ACDUTRA on September 8, 2001. A February 2002 private treatment record noted that the Veteran had a history of a recent left shoulder repair. An April 2004 VA treatment record noted the Veteran's complaints of chronic left shoulder pain and that he had undergone left shoulder rotator cuff repair in February 2003. VA treatment records dating since October 2004 have noted a diagnosis of osteoarthritis in the Veteran's left shoulder. At his August 2007 hearing, the Veteran testified that since his September 2001 left shoulder injury, he has had continued left shoulder pain and disability as well as seven left shoulder surgeries. At a March 2010 VA joints examination, the examiner diagnosed the Veteran with tendinopathy in the left shoulder. With regard to the question of whether the Veteran's left shoulder disability is due to or a result of military service, the examiner noted that this issue could not be resolved without resorting to mere speculation. The examiner opined that the Veteran's current left shoulder condition was not due to the injury in 1992, as that was a soft tissue injury that had resolved. The examiner could not verify any injury to the Veteran's left shoulder in 2001 with any objective evidence; without such objective evidence verifying the injury and what type of injury was experienced, the examiner could not state any relationship to the Veteran's current tendinopathy of the left shoulder without resorting to mere speculation. Pursuant to the Board's request for an advisory medical opinion from the VHA in October 2012, a VA physician (specifically, a shoulder and elbow surgeon) rendered a response to such request in February 2013. The physician indicated his review of the entire claims file and noted the pertinent evidence of record, including the documented injuries to the Veteran's left shoulder in June 1992 and September 2001. The physician opined that the Veteran did not have any left shoulder disability prior to the fall on September 8, 2001, and that therefore it was unlikely that the Veteran's left shoulder disability pre-existed the September 2001 date. The physician further opined that it was at least as likely as not that, given that the Veteran had no other left shoulder disability, the Veteran's current left shoulder disability had begun with the September 2001 incident. The physician expressed his agreement with the March 2010 VA examiner's assessment that the June 1992 left shoulder injury was a soft tissue injury and resolved on its own. Accordingly, the physician noted that the Veteran was able to participate successfully in active duty assignments until the September 2001 incident. The physician noted the Veteran's report that he had had six to seven surgeries after the September 2001 fall. The physician further noted that, in his clinical experience, he could see how this was possible; he stated that if a patient sustained a complicated shoulder fracture and then ultimately went on to develop an infection (which the Veteran claimed at his hearing), then it was certainly possible that the Veteran had developed a case of osteoarthritis secondary to cartilage loss from infection. The Board notes that the physician who rendered the VHA advisory medical opinion in February 2013 repeatedly stated that it would be highly beneficial for the Board to obtain the private treatment records pertaining to the Veteran's left shoulder disability, as such records were not currently in the claims file. However, despite the absence of such records, the VA physician was still able to opine that it was at least as likely as not that the Veteran's current left shoulder disability began with the left shoulder injury which occurred in the line of duty while on ACDUTRA on September 8, 2001. Therefore, as there is already an adequate basis to establish service connection in the current case, further remand to obtain the aforementioned private treatment records is not necessary. See Soyini v. Principi, 1 Vet. App. 540, 546 (1991) (concluding that remand is unnecessary where it "would result in this Court's unnecessarily imposing additional burdens on the [Board] with no benefit flowing to the veteran"). The Veteran is competent to report his left shoulder pain and can describe the symptoms of such without any specialized knowledge or training. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). There is no basis to question the credibility of the Veteran's statements. His service treatment records clearly document that he injured his left shoulder in the line of duty during ACDUTRA on September 8, 2001. The Veteran testified at his August 2007 hearing that he has had continued left shoulder pain and disability, as well as seven left shoulder surgeries, since his September 2001 left shoulder injury. In February 2013, a VA physician opined that it is at least as likely as not that the Veteran's current left shoulder disability began with the left shoulder injury which occurred in the line of duty while on ACDUTRA on September 8, 2001. While the March 2010 VA examiner could not render an opinion as to whether the Veteran's left shoulder disability is due to or a result of military service without resorting to mere speculation, the examiner's rationale for not providing such an opinion (i.e., an alleged lack of objective evidence to verify the September 2001 left shoulder injury) is outweighed by the clear documentation in the Veteran's service treatment records of a left shoulder injury on September 8, 2001. Therefore, the March 2010 examiner's analysis is entitled to little probative weight. The competent and credible evidence of record establishes that a left shoulder disability first manifested in the line of duty during the Veteran's ACDUTRA, and has persisted since that time. There is no question that the Veteran experienced left shoulder injury, pain, and disability in service, and there is no question that he has been currently diagnosed with left shoulder osteoarthritis and tendinopathy. Accordingly, service connection for a left shoulder disability is warranted. ORDER Entitlement to service connection for a left shoulder disability is granted. ____________________________________________ JENNIFER HWA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs