Citation Nr: 1315191 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 08-13 818 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for a left shoulder disability. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1967 to January 1970. He served in the Republic of Vietnam from July 1967 to February 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which denied service connection for bilateral hearing loss, bilateral tinnitus, chloracne, a left shoulder condition, and exposure to mustard gas; and confirmed and continued a previous denial of service connection for sterility. In August 2007, the Veteran submitted a notice of disagreement with the denials of service connection for hearing loss, tinnitus, chloracne, and the left shoulder. He subsequently perfected his appeal in May 2008. His case is currently under the jurisdiction of the VA RO in Houston, Texas. In February 2012, the Veteran and his wife presented sworn testimony during a video conference hearing in Houston, Texas, which was chaired by the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. In April 2012, the Board granted service connection for hearing loss and tinnitus, denied an initial compensable evaluation for tinea corporis, tinea pedis, and onychomycosis, dismissed the claim for service connection for chloracne, and remanded the claim for service connection for a left shoulder disability to the Appeals Management Center (AMC) for further evidentiary development, including scheduling the Veteran for a VA examination. The Board is obligated by law to ensure that the AMC complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. See Stegall v. West, 11 Vet. App. 268 (1998). A review of the record reflects that the AMC afforded the Veteran a VA examination for his left shoulder disability in May 2012. Accordingly, all remand instructions issued by the Board have been complied with and this matter is once again before the Board. FINDING OF FACT The preponderance of the evidence is against a finding that a left shoulder disability is the result of a disease or injury in active duty service. CONCLUSION OF LAW A left shoulder disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board 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 a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) With regard to the Veteran's claim for service connection for a left shoulder disability, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Prior to initial adjudication of the Veteran's claim, a letter dated in August 2006 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio at 187. The August 2006 letter also informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records, VA treatment records, and VA examination report and addendum opinion are in the file. Private treatment records have been obtained to the extent possible. The Veteran has not identified any additional private or other treatment records that he wishes for VA to obtain in association with his claim. With respect to claims for service connection, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. The case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), held that an examination is required when there is (1) evidence of a current disability, (2) evidence establishing an "in-service event, injury or disease," or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case. The record indicates that the Veteran was afforded a VA examination to evaluate his left shoulder in May 2012 with a January 2013 addendum opinion from the Veterans Health Administration (VHA). The results from that examination and the VHA opinion have been included in the claims file for review. The examination and VHA opinion involved a review of the claims file, including the service treatment records, a thorough examination of the Veteran (May 2012 examination only), and an opinion that was supported by sufficient rationale. Therefore, the Board finds that the May 2012 examination and January 2013 VHA opinion are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). 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 claim, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Merits of the Claim The Veteran alleges that he currently suffers from a left shoulder disability as a result of his active military service. Specifically, he claims that the stress of carrying machine guns and other heavy equipment in service caused left shoulder pain in service and this is related to his current left shoulder symptoms. He, therefore, believes that service connection is warranted. Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. See 38 U.S.C.A. § 1110 (West 2002). However, that an injury or disease occurred in service is not enough; there must also be a chronic disability resulting from that injury or disease. If there is no showing of the chronic disability during service, then a showing of continuous symptoms after service is required to support a finding of chronicity. See 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for a disability, there must be (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 current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). Post-service VA and private treatment records show the Veteran's complaints of left shoulder pain, as well as diagnoses of degenerative changes. Additionally, a May 2012 VA examiner diagnosed him with left shoulder bursitis. As such, the first element of Hickson is met. As noted above, the Veteran claims that he experienced left shoulder pain in service and that his left shoulder "took a pounding" from carrying machine guns and other heavy equipment in combat. His service treatment records are negative for any reports of a left shoulder injury. However, a review of his DD-214 reflects a military occupational specialty of light weapons infantryman and awards of the Combat Infantryman Badge and Purple Heart. These awards indicate combat experience. For veterans who engaged in combat with the enemy, lay testimony alone may be enough to establish an in-service event where such testimony is consistent with the circumstances, conditions, or hardships of such service even though there is no official record of the injury. See 38 U.S.C.A. § 1154(b) (West 2002); 38 C.F.R. § 3.304(d) (2012). As heavy lifting and excessive use of the shoulder with resulting pain is consistent with the circumstances of the Veteran's combat, his reported in-service left shoulder pain can be conceded and the second element of Hickson is met. Although an in-service injury and current disability have been established, as noted above, this is not sufficient to warrant service connection. There still must be competent medical evidence of a nexus between the Veteran's conceded in-service complaints of left shoulder pain and his current left shoulder disability. See Hickson, supra. As referenced above, the Veteran underwent a VA examination to evaluate his left shoulder in May 2012. The May 2012 VA examiner diagnosed the Veteran with left shoulder bursitis and noted his complaints of current left shoulder pain that began approximately 10 years prior. He concluded that the Veteran's current left shoulder disorder was related to service as he did not experience left shoulder pain until 10 years prior, over 30 years after his discharge from military service. Given this long period of time between the Veteran's separation from service and his first complaints of left shoulder pain, the examiner was unable to find a medical nexus between his military service and his current left shoulder disorder. The May 2012 VA examiner also noted that there was no left shoulder injury documented in the Veteran's service treatment records. However, as discussed above, the Veteran's current complaints of left shoulder pain while serving in combat have been accepted under 38 U.S.C.A. § 1154(b). As the examiner failed to provide an opinion in light of this conceded in-service left shoulder injury, the Board obtained a VHA medical opinion in January 2013. The VHA physician, an orthopedic surgeon, reviewed the Veteran's claims file, including his accepted contentions of in-service left shoulder pain and the May 2012 VA examination and opinion. He also concluded that the Veteran's current left shoulder disorder was not related to his in-service left shoulder complaints. Although the Board notes that he did not explain his reasoning in great detail, he referenced on the May 2012 VA examination report. Further, he noted that the first report of left shoulder problems after service was a February 1997 MRI report, nearly 30 years after the Veteran's separation from service. This notation is consistent with the May 2012 VA examiner's rationale that the significant period of time between the Veteran's in-service left shoulder complaints and his post-service left shoulder complaints rendered a medical nexus between the two unlikely. In this case, the only other evidence which purports to link the Veteran's current left shoulder disability to his military service consists of the statements of the Veteran and his representative. Although laypersons, such as the Veteran and his representative, are sometimes competent to provide opinions on certain medical questions, the specific issue in this case falls outside the realm of common knowledge of a lay person as it involves making definitive clinical diagnoses based on knowledge of orthopedic medicine. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). While the Veteran can describe what he experiences (in this case, left shoulder pain), he is not able to provide competent evidence as to the etiology of his left shoulder disability. Providing such an opinion requires medical expertise in the cause of bursitis and degenerative changes of the shoulder. The Veteran and his representative have no such expertise. See Jandreau v. Nicholson, 492 F.3s 1372, 1377 n.4 (Fed. Cir. 2007) (Lay persons are not competent to diagnose degenerative joint and disc disease and spinal stenosis as these are not manifested by external but rather internal signs visible only through medical imaging technology and requiring expertise in radiographic analysis to diagnose); see also 38 C.F.R. § 3.159 (a)(1) (2012) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). The Board is also aware of the provisions of 38 C.F.R. § 3.303(b), referenced above, relating to chronicity and continuity of symptomatology. However, in this case, the Veteran has not complained of left shoulder symptoms since service, only since the late 1990s or early 2000s, 30 years after his discharge from service. Further, the Board notes that the provisions of 38 C.F.R. § 3.303(b) only apply to chronic diseases as listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Although arthritis is one of the listed diseases, bursitis is not. As such, the Board finds that the medical nexus element of Hickson cannot be met via continuity of symptomatology. As explained above, the competent medical evidence of record does not demonstrate that there is a relationship between the Veteran's active duty service, including his conceded in-service complaints of left shoulder pain, and his current left shoulder disability. Although the Board notes the Veteran's current disability and conceded in-service complaints, without evidence of a medical nexus, service connection cannot be granted. Accordingly, the Board finds that the claim of entitlement to service connection for a left shoulder disability must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to service connection, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). ORDER Entitlement to service connection for a left shoulder disability is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs