Citation Nr: 1315698 Decision Date: 05/13/13 Archive Date: 05/15/13 DOCKET NO. 11-17 043 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: Nevada Office of Veterans' Services WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from January 1955 to June 1958. This matter arises from a July 2010 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Reno, Nevada. In September 2012, the Board of Veterans' Appeals (Board) remanded the claim for further development. In the September 2012 the issue remanded by the Board was entitlement to service connection for a bilateral shoulder disorder. In a February 2013 rating decision the Appeals Management Center granted entitlement to service connection for left shoulder rotator cuff tendinosis and acromioclavicular degenerative joint disease. To date, the appellant has not filed a timely notice of disagreement to either the rating or the effective date assigned. As such, the Board has no jurisdiction over this claim. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In June 2012, the Veteran testified at a videoconference hearing. A transcript of that hearing is of record. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's right shoulder disorders are not related to his active service. CONCLUSION OF LAW A right shoulder disability was not incurred in or aggravated by active service, and right shoulder arthritis may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Preliminary Matter Pursuant to the Board's September 2012 Remand, the Appeals Management Center requested that the Veteran identify treatment or evaluation for any shoulder disability since March 2011, scheduled him for a VA examination to determine the etiology of any current chronic right shoulder disorder, readjudicated the claim under the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) as discussed in more detail below, and issued a Supplemental Statement of the Case. Based on the foregoing actions, there has been compliance with the Board's September 2012 Remand. Stegall v. West, 11 Vet. App. 268 (1998). Veterans Claims Assistance Act of 2000 The VCAA provides that VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in December 2009 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. During the June 2012 Board hearing, the undersigned asked questions designed to elicit evidence that may have been overlooked with regard to the claim. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that it may now address the merits of the claim. Service Connection The Veteran claims entitlement to service connection for a right shoulder disability. At his June 2012 videoconference hearing the Veteran testified that during his active duty service, he was ejected from a fire truck on two occasions during the process of rescue operations, that he injured both shoulders, and that he sought treatment. Service connection means that the facts establish that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prevail on the merits on the issue of service connection, there must be evidence of current disability; evidence of in-service incurrence or aggravation of a disease or injury; and evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Arthritis is presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1112 , 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2012). Service connection for arthritis may also be established by evidence showing chronicity and a continuity of symptomatology. See 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Importantly, the chronicity provisions of 38 C.F.R. § 3.303(b) are not available to disorders not listed under 38 C.F.R. § 3.309(a). Id. The provisions of 38 C.F.R. § 3.303(b) (Chronicity and continuity) provide that with chronic disease shown as such in service (or within the presumptive period under 38 C.F.R. § 3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. This rule does not mean that any manifestation of joint pain in service will permit service connection of arthritis first shown as a clear-cut clinical entity at some later date. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When a disease identity such as arthritis is established there is no requirement of evidentiary showing of continuity. Continuity of symptomatology is required only where the disorder noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Given the foregoing, the first question that must be addressed is whether incurrence of a chronic right shoulder arthritis was factually shown during service. The Board concludes it was not. Indeed, there is no evidence of right shoulder arthritis until many years after the appellant's separation from active duty. As such, service connection may not be granted without competent evidence linking the disorder to service. In this regard, the law also provides that service connection may be granted for any disease diagnosed after discharge from service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In this respect, the Veteran's service treatment records do include a September 1956 sick call record in which "Check shoulder" and "Deltoid Bursitis" are noted. Despite findings in service of deltoid bursitis, there is no competent evidence linking these findings to any currently diagnosed right shoulder disorder. Indeed, at his June 1958 physical examination for release to inactive duty, the Veteran's upper extremities were evaluated as normal. The post service record is further notable for a February 1967 orthopedic finding that June 1966 x-rays showed a normal shoulder joint despite the fact that the Veteran noted a history of some right shoulder discomfort over the prior three or four years. In February 1967, the Veteran was diagnosed with a history of shoulder bursitis with no objective pathological findings. The record also shows that the appellant served in the reserve. Pertinent service treatment records from that service show that the appellant was seen for medical examinations in April 1977, August 1977, August 1978, May 1979, September 1980, August 1981, August 1982, April 1983, and June 1984; but on each occasion he was clinically evaluated as having normal upper extremities. The Veteran underwent VA orthopedic surgery consult in August 2009. The examiner noted that the Veteran reported a history of being thrown from a fire truck twice onto his right shoulder in 1956. The examiner noted that the appellant brought in service medical records showing the above referenced treatment for an acute right deltoid bursitis secondary to falls in September 1956 from a fire truck in service. The VA provider noted that since then the Veteran's wife, who had been married to him for 50 years, said that the appellant had intermittent incidences and he had records of being seen shortly after he was discharged from the service for multiple episodes of recurrent right shoulder discomfort. The VA provider opined that the Veteran had right acromioclavicular arthritis which was directly related to in-service injuries. The examiner noted that he personally had this same type of injury some 35 years ago, which led to chronic acromioclavicular arthritis. In November 2009, the Veteran's treating physician, Dr. F.T., reported reviewing the appellant's medical records from September 1956. Dr. F.T. noted that the Veteran went to sick call for shoulder pain and was diagnosed with deltoid bursitis. Dr. F.T. also stated that the appellant reported returning to the clinic on multiple occasions for treatment. The appellant further told Dr. F.T. that he was seen by Dr. R.D., in November and December 1965, as well as in January and April 1966 for the same problem. Dr. F.T. opined, "Clearly, this Veteran's subsequent problems with his shoulder are the direct result of injury he sustained while in the military." The Veteran underwent VA examination in June 2010 following which he was diagnosed with post operative residuals of right shoulder arthroscopy and arthrotomy, rotator cuff tear repair, impingement syndrome, and acromioclavicular arthritis. The VA examiner opined that the Veteran's right shoulder condition was at "least likely as not (less than 50/50 probability) caused by, the result of, or aggravated by conditions or injuries which may be occurred during active military service." The VA examiner noted that a page by page review of the original service medical records and the claims file revealed a void of medical records specifically stating that the Veteran sustained injuries to his right shoulder from a fall in September 1956 or from any fall causing shoulder injury during his active military service. The VA examiner noted that the Veteran was seen once in-service for shoulder symptoms and/or complaints. The examiner opined that based on available service treatment records, the Veteran had an acute but transient shoulder condition which did not require medical treatment until October 1965. Further, the VA examiner opined that the Veteran's right shoulder condition was not consistent with a chronic condition related to or caused by conditions occurring during active military service and noted a lack of nexus between the appellant's discharge and the initial treatment for a shoulder condition. In a June 2010 VA orthopedic surgery consult note, the Veteran's treating provider stated: In my opinion, based on my own personal experience of having a similar injury of falling directly on my left shoulder at a high rate of speed, and having extreme soreness in the shoulder that lasted for several months, and many years developed [acromioclavicular] arthritis causing impingement and rotator cuff tendinitis in my own case, and eventually a rotator cuff tear, in the [V]eteran's case, that this would be directly related to his history. A fall from a height, or at a high rate of speed, onto a shoulder can cause later [acromioclavicular] arthritis, due to damage of the meniscus and articular surface of the [acromioclavicular] joint. This will later lead to progressive degenerative arthritis, bone spurring, and eventual rotator cuff impingement and rotator cuff tear. That is exactly what we found on the [V]eteran during his [September 2009] surgery []. ... In my opinion this is related to a service-connected injury, which he was seen form, and we have a clear record of that, to follow back to it. In August 2012, a VA provider noted seeing the Veteran in August 2009 and August 2012 for complaints of right shoulder pain. The appellant reported an in-service right shoulder injury. The provider noted that military records showed deltoid bursitis. The provider noted reviewing the service medical records and his medical records and that the appellant was being seen by physicians after he was dismissed on a regular basis for his right shoulder. The provider opined that the Veteran's firefighting injury was consistent with findings exhibited in August and September 2009. The provider opined that the Veteran's current disorder was due to and at least more likely than not caused by being thrown from a fire truck in the performance of his duties. The Veteran underwent VA examination in November 2012. After review of the claims file and interview with and physical examination of the Veteran, the examiner diagnosed status post arthroscopy and arthrotomy of the right shoulder, rotator cuff tear repair, impingement syndrome, and acromioclavicular degenerative joint disease. The VA examiner noted reviewing the claims and Virtual VA files. He observed that the appellant had been seen once in September 1956 for deltoid bursitis. The examiner opined that the note implied that there was only one shoulder with a problem otherwise at least some notation of both shoulders causing problems should have been in the report. The examiner also noted that no mechanism of an injury to the shoulder was recorded, i.e., the note did not specify that the Veteran fell and sustained a shoulder injury. The examiner additionally found no further complaints/notes concerning any shoulder disorder within the service medical records, and that the Veteran's June 1958 separation examination report revealed normal upper extremities. The November 2012 examiner also noted that after service, the Veteran was seen numerous times for what was diagnosed as bilateral shoulder bursitis by a Dr. Dann beginning in 1966. Further, the examiner noted that in June 1966, the Veteran underwent a VA compensation examination which noted that he reported a history in 1956 of left shoulder discomfort. The examiner noted that in 1966 the Veteran reported that it was only during the prior three or four years that he had also had right shoulder discomfort. The November 2012 examiner noted, however, that the pertinent diagnosis in 1966 was history of left shoulder bursitis. A right shoulder disorder was not diagnosed. The November 2012 examiner acknowledged that the Veteran now had a disability affecting both shoulders. He noted, however, that the service medical records indicated that there was only one shoulder with a problem in service, that being the left shoulder. The 1966 exam noted that the Veteran did not have problems with the right shoulder until "the past three or four years," i.e., not until 1962. Therefore, the November 2012 examiner opined that it was less likely as not that the appellant's current right shoulder condition was related to service as there is a lack of objective medical evidence of a right shoulder disorder while in service. The evidence reveals a difference of opinion among the medical professionals. In deciding whether the Veteran's current chronic right shoulder disability is related to his military service, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Evans v. West, 12 Vet. App. 22, 30 (1998). That responsibility is particularly onerous where medical opinions diverge. At the same time, the Board is mindful that it cannot make its own independent medical determinations and that there must be plausible reasons for favoring one medical opinion over another. Id. Here, there are legitimate reasons for accepting the unfavorable medical opinions over the favorable medical opinions. With regard to medical evidence, an assessment or opinion by a health care provider is never conclusive and is not entitled to absolute deference. Indeed, the courts have held that a post-service reference to injuries sustained in service, without a review of service medical records, is not competent medical evidence. Grover v. West, 12 Vet. App. 109, 112 (1999). Further, 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). In addition, an examination that does not take into account the records of prior medical treatment is neither thorough nor fully informed. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). A bare transcription of lay history, unenhanced by additional comment by the transcriber, is not competent medical evidence merely because the transcriber is a health care professional. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). Also, a medical opinion is inadequate when unsupported by clinical evidence. Black v. Brown, 5 Vet. App. 177, 180 (1995). Finally, a medical opinion based on an inaccurate factual premise is not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). In sum, the weight to be accorded the various items of medical evidence in this case must be determined by the quality of the evidence and not necessarily by its quantity or source. The Board initially notes that the favorable opinion of Dr. F.T. does not specify which shoulder is the direct result of an injury the Veteran sustained while in the military. Thus, this opinion cannot be considered competent medical evidence in support of service connection for a right shoulder disability. The favorable opinions of the Veteran's treating VA provider all include reference to a September 1956 medical record of treatment for a right shoulder injury and diagnosis of right deltoid bursitis. The September 1956 service treatment record does not, however, specify whether the left shoulder, the right shoulder or both shoulders were checked. That record does not specify whether the Veteran had right, left, or bilateral deltoid bursitis. Thus, the favorable opinions of the Veteran's treating VA provider are based on speculation that the deltoid bursitis diagnosed in September 1956 was for the right upper extremity without any supporting explanation. The Board finds it significant that the Veteran's treating provider does not reference the June 1966 VA orthopedic examination at which time the Veteran noted right shoulder discomfort only over the prior three or four years. He also fails to reference the February 1967 VA orthopedic examination which indicates that five years prior, i.e., in 1962, the Veteran began to have some trouble with the right shoulder. Finally, the VA provider does not discuss the fact that the appellant underwent numerous reserve physical examinations between 1977 and 1984 which failed to show a continuity of right shoulder symptomatology. Hence, the probative value of his opinion is de minimus. In contrast, the VA examiners who conducted the June 2010 and August 2012 opinions provided thorough explanations for determining that the Veteran's right shoulder disorder was not related to his active duty service. Both VA examiners discussed the VA examinations reports in 1966 and 1967 as well as the lack of reference to a specific shoulder in the September 1956 medical record. As noted above, a medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom, 12 Vet. App. at 187. Thus, the Board must conclude that the Veteran's VA treating provider's medical opinions are based on speculation and do not provide the degree of medical certainty necessary. As such, these favorable opinions not probative medical evidence. Thus, the record is absent evidence of a chronic right shoulder disorder during service, absent evidence of right shoulder arthritis within a year following separation from active duty, absent credible evidence of continuity of right shoulder arthritis symptomatology, and absent competent medical evidence of a nexus between any current right shoulder disorder and his active duty service. To the extent that the Veteran claims his current right shoulder diagnoses are related to events he experienced in service, this is lay evidence of a medical process which extends beyond an immediately observable cause-and-effect relationship and is thus of the type that the courts have found to be beyond the competence of lay witnesses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007) ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). Further, the Board acknowledges the Veteran's June 2012 testimony that the first time he received treatment after service was in 1963 and noted that prior to 1962-1963 time frame, he had performed sedentary type of work and then went into construction where he experienced shoulder problems when he had to lift, paint or sand. This testimony, however, is not competent evidence linking a current right shoulder disorder to service. Accordingly, as the preponderance of the evidence is against the claim for service connection, the claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to service connection for a right shoulder disability is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs