Citation Nr: 1314265	
Decision Date: 04/30/13    Archive Date: 05/15/13

DOCKET NO.  09-47 385	)	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:	Tennessee Department of Veterans' Affairs


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

M. Taylor, Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  

The Veteran had active service from November 1970 to April 1971.  

This matter comes before the Board of Veterans' Appeals (Board) from a February 2009 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO).

The Veteran testified in November 2010 before the undersigned Veterans Law Judge at a Travel Board hearing at the above VARO; a transcript is of record.

In March 2012 and November 2012, the Board remanded the claim for additional development. 


FINDING OF FACT

A left shoulder disability was not shown in active service or within one year after discharge, and there is no competent evidence of a link between the Veteran's left shoulder disability and his active service.


CONCLUSION OF LAW

The criteria for service connection for a left shoulder disability have not been met.  38 U.S.C.A. §§ 1110, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012).



Veterans Claims Assistance Act

VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.  

Letters in October 2008, January 2004, November 2011, and November 2012 satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1).  These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd in part sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claim was subsequently readjudicated, most recently in a February 2013 supplemental statement of the case.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices.  See Shinseki v. Sanders, 556 U.S. 396 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); see also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006).  

The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; he did not identify any additional records pertinent to the appeal.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c) (2).  VA examinations were conducted in September 2011, April 2012 , and December 2012; the Veteran has not argued, and the record does not reflect, that these examinations were inadequate for rating purposes.  Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4).  The examiners reviewed the claims file and/or provided a rationale for their opinion based on objective findings and reliable principles.  

There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 556 U.S. 129 (2009).  



REASONS AND BASES FOR FINDING AND CONCLUSION

Criteria

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 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012).  Disabilities diagnosed after discharge will still be service connected if all 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).

To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, 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.  Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

Some chronic diseases may be presumed to have been incurred in service if they become manifest to a degree of ten percent or more within the applicable presumptive period.  Arthritis is a listed chronic disease for the purpose of presumptive service connection.  38 U.S.C.A. §§ 1101(3), 1112(a) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307(a), 3.309(a) (2012).  The applicable presumptive period is one year following separation from service.  38 C.F.R. § 3.307(a)(3) .

Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions.  It may also include statements conveying sound medical principles found in medical treatises.  Competent medical evidence may also 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). 

When an issue is raised as to whether the disorder claimed by the Veteran pre-existed service, the governing law provides that every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders noted at the time of examination, acceptance, and enrollment into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that (1) an injury or disease existed before acceptance and enrollment into service (2) and was not aggravated by such service.  See 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).  This statutory provision is referred to as the "presumption of soundness."  Horn v. Shinseki, 25 Vet. App. 231, 234   (2012). 

Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not noted on the Veteran's entrance examination report, this presumption of soundness operates to shield the Veteran from any finding that the unnoted disease or injury preexisted service.  See Gilbert v. Shinseki, 26 Vet App 48 (2012); Bagby, 1 Vet. App. at 227; see also 38 C.F.R. § 3.304(b) ("Only such conditions as are recorded in examination reports are considered as noted."). 

This presumption is only rebutted where the evidence clearly and unmistakably shows that the Veteran's disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service.  See Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227.  

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).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant

Analysis

The Veteran asserts that his left shoulder disability is related to service.  He has a current diagnosis of left shoulder degenerative joint disease.  

Although a January 1972 Board decision reflects a determination that the presumption of soundness at service entrance had been rebutted, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has since held that the "correct standard for rebutting the presumption of soundness under Section 1111 requires the government to show by clear and unmistakable evidence both that (1) the Veteran's disability existed prior to service and (2) that the preexisting disability was not aggravated during service."  The Federal Circuit noted that lack of aggravation could be shown by establishing there was no increase in disability or that any increase in disability was due to the natural progression of the preexisting condition.  See Wagner v. Principi, 370 F.3d 1089, 1096-97 (Fed. Cir. 2004).

Generally, veterans are presumed to have entered service in sound condition as to their health.  This presumption attaches only where there has been an induction examination in which the later complained-of disability was not detected.  See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991).  

A left shoulder disorder is not noted on the service entrance examination report.  Rather, the June 1970 service entrance examination report shows the upper extremities were normal, specifically to include with respect to strength and range of motion, and his upper extremities were assigned a profile of "1."  See Odiorne v. Principi, 3 Vet. App. 456, 457 (1992) (observing that the 'PULHES' profile reflects the overall physical and psychiatric condition of the Veteran on a scale of 1 (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service)).  A November 1970 entry on the June 1970 examination report reflects the shoulder was normal and no disqualifying defects were noted.  

Although the Medical Board report reflects a determination that the limitation of motion of the left shoulder and elbow was probably secondary to an old brachial plexus injury which was noted to exist prior to service entrance and was not aggravated by service, a left shoulder disability was not noted at service entrance.  The regulations provide expressly that the term "noted" denotes "[o]nly such conditions as are recorded in examination reports," 38 C.F.R. § 3.304(b), and that "[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions."  Id. at (b)(1).  

The April 2012 VA neurologic examiner concluded that there is no evidence to substantiate a diagnosis of brachial plexopathy, noting the Veteran's history of shoulder pain without any weakness and/or sensory loss in any dermatome further negated the possibility of a brachial plexopathy, and did not fit any neurological pattern of neuropathy/plexopathy.  

In view of the contemporaneous record, there is not clear and unmistakable evidence that a left shoulder disability existed prior to service entrance.  The presumption of soundness is not rebutted and the Veteran is presumed sound at service entrance.  

Even assuming limitation of motion of the left shoulder existed prior to service entrance, the April 2012 VA examiner stated that it is clear that the current mild degenerative joint disease of his bilateral shoulder is not due to the 'pulled' left shoulder during service or due to the claimed, but undocumented, spinal meningitis.  Rather, arthritis of the bilateral shoulders is most likely due to the effects of aging and commensurate with his age.  

The Veteran is competent to report his symptoms and the Court has specifically indicated that lay evidence may establish the existence of a current disorder capable of lay observation.  To the extent that the Veteran has attempted to establish a continuity of symptoms based on lay statements, however, the Board finds such attempt to be inconsistent with the more probative contemporaneous record, to include not only the negative x-ray examination noted in the Medical Board report but also the lengthy gap between separation from service and the initial evidence of left shoulder arthritis.  

The Veteran filed a claim for service connection for aggravation of a left shoulder disorder in August 1971.  However, the initial medical evidence thereafter pertaining to the left shoulder are two private medical examination reports for commercial driver fitness determinations, dated in November 2008 and March 2009, reflecting the Veteran denied having or having had an impaired arm.  The Veteran's statements severely undercut any claim of continuity of symptoms since discharge from service.  

And both reports reflect no impairment of the arm and no weakness was found, and it was noted that he did not have insufficient grasp in the upper limb to maintain steering wheel grip.  

The initial documented evidence of left shoulder arthritis is decades after service;  VA treatment records note degenerative joint disease in July 2009.  

The competent, objective evidence does not establish a continuity of symptoms after separation.  Rather, left shoulder arthritis has been attributed to the effects of aging.  

The Veteran is competent to report his symptoms.  As he is not shown to have medical expertise, however, his opinion as to causation is of little probative value, if any. 

In reaching a determination, the Board has accorded substantial probative value to the objective findings and medical opinion.  The examiner reviewed the claims folder and provided a rationale for the opinion attributing left shoulder arthritis to aging, not service.  Such is far more probative than the Veteran's lay assertions, which are undercut by his own statements in 2008 and 2009.  

The preponderance of the evidence is against the claim and there is no doubt to be resolved.  Service connection is not warranted.  


ORDER

Service connection for a left shoulder disability is denied.  



____________________________________________
RONALD W. SCHOLZ
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs