Citation Nr: 1313263 Decision Date: 04/22/13 Archive Date: 05/03/13 DOCKET NO. 09-11 652 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for a right shoulder disorder. 2. Entitlement to service connection for a thoracolumbar spine disorder. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from July 1992 to September 1996 and from September 2002 to July 2004. He also had service with the Army Reserves from June 1991 to February 1992 and with the Alabama Army National Guard from September 1996 to May 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. FINDINGS OF FACT 1. The Veteran does not have a current right shoulder disability. 2. The Veteran does not have a current thoracolumbar spine disability. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for a right shoulder disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 1137, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 2. The criteria for establishing service connection for a thoracolumbar spine disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 1137, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. See Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (holding that VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a November 2006 letter the RO provided notice to the Veteran regarding what information and evidence was needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised him of how disability evaluations and effective dates are assigned and the type of evidence that impacts those determinations. The case was last adjudicated in December 2009. The record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including his service treatment records, some National Guard treatment records, post-service VA and private treatment records, VA examination reports, and lay statements. The Veteran was not provided with a VA examination to assess his claim for service connection for a thoracolumbar spine disability. However, VA need not conduct an examination with respect to that claim on appeal, as information and evidence of record contains sufficient competent medical evidence to decide the claim. See 38 C.F.R. § 3.159(c)(4) (2012); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). Specifically, while service treatment records reflect that the Veteran was examined for a thoracic spine injury in August 2003, competent post-service lay and medical evidence does not include a current diagnosed thoracolumbar spine disability or persistent or recurrent symptoms of a thoracolumbar spine disability. Therefore, a VA examination is not warranted. VA has considered and complied with the VCAA provisions discussed above. The Veteran was notified and aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Criteria & Analysis Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b). Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of service connection there must be medical evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Barr v. Nicholson, 21 Vet. App. 303 (2007); Pond v. West, 12 Vet App. 341, 346 (1999). Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes 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. This presumption is rebuttable by affirmative 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). The Veteran contends that he has right shoulder and thoracic spine disorders as a result of an August 2003 training injury during his second period of service. Service treatment records from the Veteran's first period of service were silent for complaints, findings, or treatment related to right shoulder or back problems. On separation examination in August 1996, the Veteran denied currently or ever having a painful or "trick" shoulder or recurrent back pain. Clinical evaluation of the upper extremities and spine was reported as normal. In an October 2001 National Guard report of medical history, the Veteran denied currently or ever having a painful shoulder or recurrent back pain or any back problem, and clinical evaluation of the upper extremities and spine was reported as normal. Service treatment records dated in August 2003 reflect that the Veteran was participating in military police training, playing the role of "detainee" when he was injured while struggling. He was sent for MRI testing of the thoracic spine and right shoulder to rule out disc fracture versus ligament injury and placed on light duty while awaiting MRI and x-ray results. The impression of an MRI of the thoracic spine was reported as normal, and a right shoulder MRI was reported as negative. An August 2003 follow-up note indicated that MRI studies of the thoracic spine and right shoulder revealed no abnormality. The Veteran still complained of pain, but was able to do range of motion. The assessment was status post trauma blunt soft tissue injury. Another note from the same day indicates that he was medically cleared by ortho and he was placed on a temporary, light duty profile for one month. A post-service VA treatment record dated in June 2005 reflects that the Veteran presented to establish care. He complained of chronic neck and upper back pain and reported a past medical history that included right shoulder dislocation and chronic upper back pain since August 200[3]. A June 2005 thoracic spine x-ray revealed no bony abnormality, and a June 2005 right shoulder x-ray revealed no acute fractures, dislocation, or any significant degenerative changes noted. Subsequent VA and National Guard treatment records associated with the claims file were silent for complaints, findings, or treatment for right shoulder or thoracic spine problems. The Veteran was afforded a VA joints examination in March 2008 to evaluate the nature and etiology of several claimed disabilities, including a right shoulder disability. He described being injured during a forced extrication exercise in August 2003, stated that he snapped his neck, and described transient numbness from his shoulders down. He reported that an MRI was not performed until January 2007 and that the MRI demonstrated disc bulges. He also reported that x-rays of the right shoulder were negative. Following a physical examination, the assessment included no impairment of the right shoulder and cervical radiculopathy of the right upper extremity. In a March 2008 rating decision, the RO granted service connection for chronic rhomboid muscle strain, which the Veteran claimed as a neck disability due to the August 2003 training injury. The claims for right shoulder and thoracolumbar spine disabilities were denied. Private treatment records dated from January through April 2007 were received in March 2008 and pertained to the Veteran's right elbow and neck, including a January 2007 cervical spine MRI, which revealed a C6-7 disc protrusion. The records did not reflect complaints or findings related to the claimed right shoulder or thoracic spine disorders. After reviewing the medical and lay evidence of record, the Board finds that service connection for right shoulder and thoracic spine disorders is not warranted. Initially, the Board acknowledges that the Veteran is competent to describe symptoms of his claimed right shoulder and back disorders such as pain. See Barr v. Nicholson, 21 Vet. App. 303 (2007). However, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, diagnosing a musculoskeletal or orthopedic disorder and determining the etiology of such falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Thus, the Board accords significantly greater probative value to the medical evidence of record than to the Veteran's lay assertions on these points. In this case, the Board finds that service connection for right shoulder and thoracic spine disorders is not warranted because there is no evidence of a current right shoulder or thoracic spine disability. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C.A. § 1110. Where, as here, the claims file is void of any competent medical evidence establishing that the Veteran currently has a right shoulder or thoracic spine disability, the conditions for which service connection is sought are not established, and thus, there can be no valid claim for service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). While the Veteran reported upper back pain and a history of right shoulder dislocation in June 2005, pain alone without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute disability for which service connection may be granted. Sanchez- Benitez v. West, 13 Vet. App. 282, 285 (1999) appeal dismissed in part, and vacated and remanded in part, Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). In this case, the current medical evidence, including a VA examination specifically for the claimed right shoulder disorder, does not reflect current disability of the right shoulder or thoracolumbar spine. Accordingly, service connection for those claimed conditions is not warranted. In arriving at the decision to deny the claims, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claims, that doctrine is not applicable. 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 a right shoulder disorder is denied. Service connection for a thoracolumbar spine disorder is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs