Citation Nr: 1314925 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 09-23 475 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas THE ISSUES 1. Entitlement to service connection for a back disability. 2. Entitlement to service connection for a right shoulder disability, to include as secondary to a service-connected cervical spine disability. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARINGS ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Kedem, Counsel INTRODUCTION The Veteran had active service from July 1962 to July 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by which the RO, in pertinent part, denied entitlement to the benefits sought herein. In March 2009, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO. In August 2011, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge at the RO. Transcripts of the hearings have been associated with the claims file. In March 2012, the Board remanded the issues on appeal to the RO for further development of the evidence, which has been accomplished as directed, and the Board concludes that it may proceed with a decision at this time. See 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 (Fed. Cir. 2002). Additional documents were received from the Veteran in March 2013, after the most recent supplemental statement of the case was issued by the agency of original jurisdiction (AOJ). Generally, submission of new evidence without a waiver of consideration of such evidence by the AOJ requires remand for readjudication and issuance of a supplemental statement of the case. See 38 C.F.R. § 19.31 (2012). In the present case, however, the Veteran has submitted his own contentions and a copy of a service treatment record. The Veteran's contentions are essentially the same as those previously made to VA, and his service treatment records, to include the record submitted by the Veteran to the Board, were previously incorporated into the claims file and reviewed by the Board. Thus, remand for issuance of a supplemental statement of the case is not required, and would only further delay the present case. FINDINGS OF FACT 1. A back disability was not present during the Veteran's active service or for many years thereafter, and the Veteran's current back disability is not causally related to his active service or any incident therein. 2. A right shoulder disability was not present during the Veteran's active service or for many years thereafter, and the Veteran's current right shoulder disability is not causally related to his active service or any incident therein, nor is it causally related to or aggravated by any service-connected disability, including a cervical spine disability. CONCLUSIONS OF LAW 1. A back disability was not incurred in or a result of service, and service connection for a back disability may not be presumed based on the one year presumption for a chronic disease. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2012). 2. A right shoulder disability was not incurred in or a result of service, was not proximately due to or aggravated by a service-connected disability, and service connection for a right shoulder disability may not be presumed based on the one year presumption for a chronic disease. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) VCAA and its implementing regulations impose obligations on VA to provide those claiming VA benefits with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the 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, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In a timely March 2008 letter, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate claims for service connection as well as what information and evidence must be submitted by the Veteran and what evidence VA would obtain. The notice included provisions for disability ratings and for the effective date of the claim. In an April 2012 letter, the RO provided notice regarding establishing service connection on a secondary basis. Any defect as to the timing of the VCAA notice was cured because the RO readjudicated the claims in a February 2013 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376-78 (2006) (validating the remedial measures of issuing fully compliant VCAA notification and re-adjudicating the claim in the form of a statement of the case to cure timing of notification defect). The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. The record contains the service treatment records, VA clinical records, private medical records, and VA examination reports. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that, when viewed in toto, the VA medical opinions obtained in this case are adequate. The nexus opinions provided considered all of the pertinent evidence of record, to include the statements of the Veteran, and provided a complete rationale for the opinions stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the service connection issues herein has been met. 38 C.F.R. § 3.159(c)(4). The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence, including affording VA examinations. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's service treatment records, VA treatment records, private medical records, VA nexus opinions including substantiated reasons and bases for those opinions, and the Veteran's statements. For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Standard of Review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102 (reasonable doubt to be resolved in veteran's favor). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Law and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the 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. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (holding that 38 C.F.R. § 3.303(b) applies only to "chronic diseases" such as arthritis listed in 38 C.F.R. § 3.309(a)). Finally, service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases, such as arthritis, to a degree of 10 percent or more within one year from separation from service, such diseases may 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. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartwright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. The Board is charged with the duty to assess the credibility and weight given to evidence. Wensch v. Principi, 15 Vet. App. 362, 367 (2001); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board has reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a veteran or obtained on a veteran's behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Discussion Back The Veteran contends that he has a current low back disability that is related to heavy lifting in service in his capacity as an X-ray technician. The service treatment records are silent as to complaints or findings pertaining to the back. There is no notation of a back injury in the service treatment records. The Veteran, moreover, denied "back trouble of any kind" in his report of medical history completed prior to service separation, and the spine was found to be normal on the corresponding discharge medical examination. In January 2008, the Veteran sought treatment for back pain, and mechanical back pain along with postural weakness was diagnosed. In his February 2008 claim for benefits, the Veteran indicated that his claimed back disability had its onset in 1962 as a result of lifting heavy patients onto X-ray tables and that it had persisted since that time. At his March 2009 DRO hearing, the Veteran denied seeking treatment for his back in service or thereafter other than recently having obtained a back brace from VA. Indeed, a progress note dated in June 2008 reflects that the Veteran asked to be fitted for a back brace because his job required heavy lifting. However, he denied back problems unless he was lifting 50 pound bags of feed. A VA progress note dated in July 2008 indicates that the Veteran was issued a lumbar corset for thoracic lumbar spinal arthrosis. In April 2009, the Veteran underwent a VA spine examination. The Veteran reported low back pain since service as a result of his duties as an X-ray technician. The examiner diagnosed chronic lumbar spine strain. The examiner noted that there was no diagnosis of a back condition in service and no treatment for such a condition in service or thereafter. At his August 2011 hearing before the undersigned, the Veteran testified that back problems had been ongoing since service and resulted from lifting patients. He stated that he did not report any back problems in service and that following service, despite symptoms, he did not seek treatment for the back until 2008. On VA spine examination in June 2012, the examination diagnosed low back pain since 1966/67 and degenerative joint disease of the lumbar spine since June 2012, when the degenerative joint disease was discovered pursuant to an X-ray study. On examination, the Veteran reported low back pain since service in the 1960's due to job duties. The examiner opined that the Veteran's lumbar spine disability was unrelated to service and did not have its onset in service. The examiner explained that the Veteran's lumbar degenerative joint disease was age related. First, the Board finds that a back disability was not incurred in service. The Board has no reason to doubt the Veteran's assertions of back pain. VA, however, does not generally grant service connection for symptoms alone, without an identified basis for those symptoms. Thus, assertions of back pain in service without an underlying diagnosis does not suffice for a finding that a back disability was incurred in service. See Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (holding that "[p]ain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted"). Next, the Board finds that a low back disability was not continuous since service separation. The Board acknowledges that the Veteran has suffered from low back pain since service. As stated, such pain without an underlying diagnosis, does not suffice for service connection. Id. The Board recognizes that the Veteran suffers from degenerative joint disease of the low back. Thus, service connection based on continuity of symptomatology is available. 38 C.F.R. § 3.309(a); Walker, supra. However, because low back degenerative joint disease was not found until June 2012, more than 40 years after service separation, the Board cannot conclude that such disability was continuous since service. 38 C.F.R. § 3.303(b). For the same rationale, the Board finds that service connection for the current low back degenerative joint disease cannot be granted on a presumptive basis. 38 C.F.R. §§ 3.307; 3.309(a). Because low back degenerative joint disease was diagnosed more than four decades after discharge, the Board finds that it did not manifest to a degree of 10 percent or more within the first post-service year. In such situations, presumptive service connection is precluded. Id. Finally, the Board finds that the Veteran's current low back disability is not otherwise related to service. As stated, he has asserted pain since service. However, the Board notes that a medical diagnosis regarding the low back was not rendered until January 2008, when mechanical back pain and postural weakness were diagnosed. Furthermore, the June 2012 VA examiner opined that the current low back disability was age related. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the origins of spinal disabilities fall 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, because the Veteran is a lay person, his representations regarding the origins of his low back disability do not constitute competent medical evidence upon which the Board may rely. In June 2012, the VA examiner opined that the Veteran's low back degenerative joint disease was age related and entirely unrelated to service. Based on this opinion, the Board finds that the Veteran's back disability is unrelated to service, and service connection for the claimed back disability must be denied. 38 C.F.R. § 3.303(d). The only probative evidence of record is the competent nexus opinion of the June 2012 VA examiner, which weighs against the claim. Consequently, the evidence for and against the claim is not in relative equipoise, and the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Alemany, supra. Right shoulder The Veteran contends that a right shoulder disability is due to a slip and fall injury in service. In the alternative, he proposes that his right shoulder disability is due to or aggravated by a service-connected cervical spine disability. The service treatment records are entirely silent as to the right shoulder. In a report of medical history completed in connection with service separation, the Veteran expressly denied a "trick" shoulder. In the corresponding medical examination report, no right shoulder disability was noted. A January 1998 X-ray study of the right shoulder yielded an impression of "negative right shoulder." A March 1998 magnetic resonance imaging (MRI) of the right shoulder indicated tendinosis and mild impingement changes. A December 2007 private medical report indicates that the Veteran complained of cervical spine pain for years and had recently begun to complain of right shoulder pain. The physician indicated that the Veteran had right-sided neck pain that radiated into the right shoulder. At the March 2009 DRO hearing, the Veteran testified that during service in Germany, he slipped on ice and hurt his right shoulder. He testified that he did not seek treatment for the right shoulder in service although right shoulder problems began at that time. He also indicated that he was told that right shoulder pain could be related to the service-connected cervical spine disability. On April 2009 VA medical examination, the examiner diagnosed right shoulder impingement syndrome and opined that it was unrelated to the cervical spine disability because it was a clear-cut diagnosis entirely separate from a service-connected cervical spine disability. An August 2009 MRI of the right shoulder showed medial dislocation of the biceps tendon and os acromiale with acromioclavicular joint osteoarthritis. In September 2009, the Veteran underwent a right shoulder arthroscopic decompression pursuant to a pre and post-operative diagnoses of subscapularis tear, biceps dislocation, impingement syndrome. At the August 2011 Board hearing, the Veteran testified that he sustained a right shoulder injury when slipping on ice in Bitburg. He testified that right shoulder surgery had not been effective and that he had been told that right shoulder problems could have resulted from the service-connected cervical spine disability. He indicated, however, that right shoulder symptoms had persisted since service but he denied treatment for the right shoulder in service. In June 2012, the Veteran underwent a VA medical examination in which the examiner opined that the right shoulder disability was unrelated to and not aggravated by the service-connected cervical spine disability because the right shoulder disability was an entity separate and apart from the service-connected cervical spine disability. In February 2013, the RO sought clarification. Subsequently, the examiner opined that the current right shoulder disability was unrelated to service, because, in essence, there is no evidence of an actual right shoulder injury in service despite the alleged fall. The Board does not necessarily dispute the Veteran's account of a fall on ice in service. However, the lack of treatment for a right shoulder injury in service coupled with an express denial of right shoulder problems on separation and no findings regarding the right shoulder on discharge leads the Board to conclude that a right shoulder disability was not incurred in service. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998) (in adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence); see also Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001) (recognizing the Board's inherent fact-finding ability). Furthermore, since the first post-service evidence of a right shoulder disability, which includes an arthritic component, is dated several decades after service separation, the Board finds that symptoms of a right shoulder disability have not been continuous since service separation and that a right shoulder disability did not manifest in the first post-service year. Thus, service connection for the claimed right shoulder disability is not warranted presumptively or on the basis of continuity of symptomatology. 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Furthermore, the Board finds that a right shoulder disability is not otherwise related to service. 38 C.F.R. § 3.303(d). The Board notes that there are certain medical questions about which a lay person is competent to provide evidence, see Kahana, 24 Vet. App. at 435, arthritic and neurological disabilities, however, fall outside the realm of the common knowledge of a lay person. See Jandreau, 492 F.3d at 1377 n.4 (lay persons not competent to diagnose cancer). Thus, the Veteran, who is a lay person, is not competent to provide evidence regarding the origins of the claimed right shoulder disability. Thus, the Board does not find probative his assertions regarding a nexus between a present right shoulder disability and service. The competent and probative evidence does not reflect a nexus between a current right shoulder disability and service. Thus, the Board finds that the currently diagnosed right shoulder conditions are unrelated to service. 38 C.F.R. § 3.303(d). As to secondary service connection, the competent and probative medical evidence indicates that a current right shoulder disability is not the proximate result or due to a service-connected cervical spine disability and not aggravated thereby. As such, there is no means by which to grant service connection for the claimed right shoulder disability on a secondary basis, to include on the basis of aggravation. 38 C.F.R. § 3.310; Allen, supra. The only probative evidence of record consists of the competent medical opinions detailed above. These weigh against the claim. Consequently, the evidence for and against the claim is not in relative equipoise, and the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Alemany, supra. ORDER Service connection for a back disability is denied. Service connection for a right shoulder disability is denied. ____________________________________________ T.D. JONES Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs