Citation Nr: 1315876 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 04-21 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to service connection for a right shoulder disability to include as due to a service connected disability or to an undiagnosed illness. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty for training from February 1972 to June 1972 and on active duty from December 1990 to June 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in September 2003 of the Department of Veterans Affairs (VA) Regional Office (RO), in Waco, Texas. In May 2007, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. The transcript of the hearing is in the Veteran's file. In August 2007, June 2009, September 2010, January 2012, and January 2013, the Board remanded the case for further development. FINDING OF FACT The Veteran's diagnosed right shoulder disability, degenerative joint disease of the acromioclavicular joint, did not have its onset in service or within the first postservice year, and it is not caused by or aggravated by a service connected disability. CONCLUSION OF LAW The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C.A. §§ 1110, 1117 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310, 3.317 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Notice and Assistance On receipt of a complete or substantially complete application, 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 dated in May 2003 and October 2007 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). 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 claim was subsequently readjudicated, most recently in a March 2013 supplemental statement of the case. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notices. See Shinseki v. Sanders, 129 S.Ct. 1696 (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 and relevant VA medical treatment records have been obtained. 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 August 2003, November 2007, September 2009, October 2010, February 2012, and February 2013. Taken as a whole, these examination reports/medical opinions provide a sufficient basis for the Board's adjudication of the claim. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issue 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, 129 S. Ct. 1696 (2009). Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active service. 38 U.S.C.A. § 1110 (wartime service). Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d). Service connection for certain chronic disorders, such as arthritis, may be established based on a legal "presumption" by showing that either disability manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). In addition, a claimant is entitled to service connection on a secondary basis when it is shown that a service-connected disability has chronically aggravated a nonservice-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Because the Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War, service connection may also be established under 38 C.F.R. § 3.317. Under that section, service connection may be warranted for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability that became manifest during active military, naval or air service in the Southwest Asia Theater of operations during the Persian Gulf War. For disability due to undiagnosed illness and medically unexplained chronic multi symptom illness, the disability must have been manifest either during active military service in the Southwest Asia Theater of operations or to a degree of 10 percent or more not later than December 31, 2016. 38 C.F.R. § 3.317(a)(1). For purposes of 38 C.F.R. § 3.317, there are three types of qualifying chronic disabilities: (1) an undiagnosed illness; (2) a medically unexplained chronic multi symptom illness; and (3) a diagnosed illness that the Secretary determines in regulations prescribed under 38 U.S.C.A 1117(d) warrants a presumption of service connection. An undiagnosed illness is defined as a condition that by history, physical examination and laboratory tests cannot be attributed to a known clinical diagnosis. In the case of claims based on undiagnosed illness under 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. at 8-9. Further, lay persons are competent to report objective signs of illness. Id. To determine whether the undiagnosed illness is manifested to a degree of 10 percent or more the condition must be rated by analogy to a disease or injury in which the functions affected, anatomical location or symptomatology are similar. See 38 C.F.R. § 3.317(a)(5); see also Stankevich v. Nicholson, 19 Vet. App. 470 (2006). A medically unexplained chronic multisymptom illnesses is one defined by a cluster of signs or symptoms and specifically includes chronic fatigue syndrome, fibromyalgia, and functional gastrointestinal disorders (excluding structural gastrointestinal diseases), as well as any other illness that the Secretary determines meets the criteria in paragraph (a)(2)(ii) of this section for a medically unexplained chronic multisymptom illness. A "medically unexplained chronic multisymptom illness" means a diagnosed illness without conclusive pathophysiology or etiology that is characterized by overlapping symptoms and signs and has features such as fatigue, pain, disability out of proportion to physical findings, and inconsistent demonstration of laboratory abnormalities." Chronic multisymptom illnesses of partially understood etiology and pathophysiology will not be considered medically unexplained. 38 C.F.R. § 3.317(a)(2)(ii). "Objective indications of chronic disability" include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. 38 C.F.R. § 3.317(a)(3). Signs or symptoms that may be manifestations of undiagnosed illness or medically unexplained chronic multisymptom illness include, but are not limited to, the following: (1) fatigue; (2) signs or symptoms involving skin; (3) headache; (4) muscle pain; (5) joint pain; (6) neurologic signs or symptoms; (7) neuropsychological signs or symptoms; (8) signs or symptoms involving the respiratory system (upper or lower); (9) sleep disturbances; (10) gastrointestinal signs or symptoms; (11) cardiovascular signs or symptoms; (12) abnormal weight loss; and (13) menstrual disorders. 38 C.F.R. § 3.317(b). For purposes of section 3.317, disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. 38 C.F.R. § 3.317(a)(4). Competency is a legal concept in determining whether lay or medical evidence may be considered, in other words, whether the evidence is admissible as distinguished from credibility and from the weight of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). Competent lay evidence is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d at 1377. When the competent lay or medical evidence is admissible, the Board must then determine whether the evidence is credible. "Credible evidence" is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the weight or probative value of the admissible evidence, that is, does the evidence tend to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, the evidence has no probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C.A. § 5107(b). The service treatment records show that a May 1972 release from active duty examination and December 1987 reserve enlistments examination noted normal upper extremities and musculoskeletal examinations. In April 1991 in Saudi Arabia the Veteran was lighting a burn pit and when the gasoline ignited he suffered flash burns of the head and face and the upper extremities. Second degree burns to the right arm were noted. In escaping the flames, the Veteran tripped and hurt his left shoulder. X-rays of the left shoulder were requested because of decreased range of motion and the X-rays showed no fracture. There was no record of complaint of right shoulder injury. On separation in examination in June 1991, the Veteran denied a history of shoulder pain or a "trick" shoulder, and the upper extremities were evaluated as normal by the examiner. After service, in a rating decision in April 1993, the RO granted service connection for burn scars on the right side of the face and neck and right upper extremity and assigned a combined rating of 20 percent. On VA examination in February 1995, the Veteran complained of left shoulder pain. History included a musculoskeletal injury to the left shoulder in April 1991, when the Veteran suffered burns and fell on his shoulder. There were no right shoulder complaints noted. The pertinent findings were normal range of motion and motor strength of the shoulders, and no diagnosis. VA records show that in March 2002 the Veteran complained of left shoulder pain and an 11-year history of cervical pain, following his shoulder injury in 1991. It was noted that X-rays in May 1999 showed cervical joint disease. No right shoulder complaints were noted. The assessments were cervical spondylosis with facet arthropathy (joint disease) and cervical degenerative disc disease and myofascial pain. In June 2002, the Veteran had myofascial pain in the right trapezius muscles. In his current application for VA disability benefits, filed in March 2003, the Veteran, a Veteran of the Persian Gulf War, claimed service connection for joint pain and muscle pain due to an undiagnosed illness. On VA examination in August 2003, the Veteran stated that in April 1991 he hit his left shoulder and neck and he had developed pain in the shoulders and neck since then. X-rays showed minimal degenerative changes of the right acromioclavicular joint. The diagnosis was sprain of the right shoulder. In September 2003 in a rating decision, the RO denied service connection for muscle and joint pain of the right shoulder diagnosed as degenerative joint disease. In May 2007, the Veteran testified that after the gasoline explosion he landed on his shoulder and he has had neck and shoulder pain since then. On VA examination in November 2007, the Veteran stated that in 1991 he fell on his left shoulder after a gasoline explosion. There was no diagnosis of a right shoulder disability. On VA examination in September 2009, the impression was trapezius muscle pain radiating from the neck to the shoulders. The examiner noted that the Veteran did not have any intrinsic pain of the right shoulder, but rather pain on the right side of the neck radiating to the shoulder. Physical examination of the right shoulder was normal. In a rating decision in May 2010, the RO granted the claim of service connection for degenerative joint disease of the cervical spine, which was on appeal, on grounds that the disability was related to the Veteran's injury in April 1991, when he fell running from a gasoline fire. On VA examination in October 2010, the diagnosis was degenerative disease of the right acromioclavicular joint. The VA examiner expressed the opinion that it was less likely as not that the degenerative changes were the result of the injury in service, because the findings were in each shoulder, related to advancing age, not to an injury in service. On VA examination in February 2012, after considering the Veteran's history of a left shoulder injury when the Veteran fell running from a fire, the diagnosis was traumatic arthropathy of the left acromioclavicular joint, and degenerative joint disease of the right acromioclavicular joint. The VA examiner expressed the opinion that the left shoulder disability was at least as likely as not due to the in-service injury. The VA examiner explained that in the medical literature trauma to the shoulder can precipitate the development of acromioclavicular arthropathy, and as the Veteran fell upon his left shoulder, the fall precipitated the traumatic acromioclavicular, arthropathy of the left shoulder. It was the examiner's opinion that the right shoulder degenerative joint disease of the acromioclavicular joint was not due to the explosion in service. Further, the examiner stated that the right shoulder disability was less likely than not proximately due to or the result of the service connected degenerative joint disease of the cervical spine, explaining that medical literature provided no evidence that degenerative joint disease of the cervical spine initiates, aggravates, or precipitates arthropathy of the acromioclavicular joints. In a January 2013 decision, the Board granted service connection for traumatic arthropathy of the left acromioclavicular joint. The Board then remanded the right shoulder claim for a VA examination to consider possible secondary service connection due to the now service connected left shoulder. A VA examination was conducted in February 2013. The Veteran reported gradually increasing pain to the right trapezius to the shoulder since about 2003. He currently had pain with repetitive use, heavy lifting, and overhead work. The examiner opined that it was less likely as not that the current right shoulder AC joint degenerative joint disease was caused by, aggravated by, or the result of the Veteran's service connected left AC joint degenerative joint disease; the examiner knew of no medical authority which supports the contention that degenerative joint disease of one AC joint can be causative to or aggravate the development of degenerative joint disease in the contralateral AC joint. The examiner noted that degenerative joint disease is not a contagious disease; it occurs as the result of lifelong repetitive use or as a post-traumatic disorder. He noted that the Veteran was right hand dominant, and that his current AC joint degenerative joint disease was no more than anticipated based on his age alone. The examiner also opined that it was less likely as not that the current right shoulder AC joint degenerative joint disease was caused by, aggravated by, or the result of the Veteran's service connected cervical degenerative joint disease; the examiner knew of no medical authority which supports the contention that degenerative joint disease of the cervical spine can be causative to or aggravate the development of degenerative joint disease in an AC joint. The examiner again noted that degenerative joint disease is not a contagious disease; it occurs as the result of lifelong repetitive use or as a post-traumatic disorder. H repeated that the Veteran was right hand dominant, and that his current AC joint degenerative joint disease was no more than anticipated based on his age alone. The medical evidence shows that Veteran's right shoulder disability has been diagnosed as degenerative joint disease of the AC joint. Therefore, service connection for that disability as an undiagnosed illness under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 is not permitted as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). As such, the Board must consider if service connection may be granted on another basis. There is no showing of right shoulder injury in the service treatment records. The first right shoulder complaints shown in the record appear in 2002, more than ten years after the Veteran's separation from active service. No medical evidence of record supports a finding that the Veteran's current right shoulder disability, diagnosed as degenerative joint disease of the AC joint, had its onset in service. The Veteran does not meet the criteria for service connection based on a continuity of symptomatology analysis. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) ("An alternative method of establishing the second and/or third Caluza element is through a demonstration of continuity of symptomatology."). Under 38 C.F.R. § 3.303(b), continuity of symptomatology may be used to support a claim for service connection for a chronic disease such as arthritis. In such instances, the second and third criteria for service connection can be satisfied if the Veteran presents: (a) evidence that a condition was noted during service or a presumptive period; (b) evidence of post-service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. McCormick v. Gober, 14 Vet. App. 39, 49-50 (2000) (citing 38 C.F.R. § 3.303(b)). The Veteran's claim fails under this analysis, however, as the Board does not find a post-service continuity of symptomatology. While the Veteran contends that he has experienced right shoulder pain since service, the Board notes that the VA examination in February 1995, which included detailed complaints and findings related to the neck and left shoulder, did not include any such complaints or findings pertaining to the right shoulder. Additionally, on the February 2013 VA examination, the Veteran reported right shoulder pain since 2003. The earliest post-service record of the Veteran's suffering from right shoulder pain comes in 2002, and degenerative joint disease of the right AC joint was first shown in 2003; this evidence places the onset of right shoulder pain more than ten years after the Veteran's separation from service. To the extent that the Veteran has stated that he has had a post-service continuity of symptomatology, the Board does not find him to be credible. The Board does not believe that he would simply not mention his on-going right shoulder pain, either during service, or on the February 1995 VA examination. Accordingly, the Board does not find evidence of a post-service continuity of symptomatology, and his claim fails under this basis. Degenerative joint disease of the right AC joint was first shown in 2003. Thus, service connection for arthritis on a presumptive basis is not warranted. 38 U.S.C.A. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Regarding possible secondary service connection, the only medical opinions of record that address the relationship, if any, of the Veteran's degenerative joint disease of the right AC joint and his service connected cervical spine and left shoulder disorders, determined that there was no relationship. The Board acknowledges that the Veteran contends that such a link exists. However, the Veteran has not provided any evidence in support of this contention, and as a layperson, he is not competent to make such a determination. In this case, the competent evidence does not suggest that a service-connected disability caused or aggravated the Veteran's degenerative joint disease of the right AC joint; thus, service connection on a secondary basis is not warranted. 38 C.F.R. § 3.310. The preponderance of the evidence is against the claim for service connection for a right shoulder disability. There is no doubt to be resolved; and service connection is not warranted. (The Order follows on the next page.). ORDER Service connection for right shoulder disability, degenerative joint disease of the acromioclavicular joint, is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs