Citation Nr: 1316379 Decision Date: 05/17/13 Archive Date: 05/29/13 DOCKET NO. 10-24 745 ) 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. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Bridgid D. Cleary, Counsel INTRODUCTION The Veteran served on active duty from May 1954 to May 1956. This matter has come before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a decision review officer at the RO in January 2011 and at a video conference hearing before the undersigned Veterans Law Judge in February 2012. Transcripts of the hearings are associated with the claims file. In March 2012, the Board remanded the issue of whether new and material evidence had been received sufficient to reopen a previously denied claim of entitlement to service connection for a right shoulder disability for further development. In December 2012, the Board reopened the underlying claim and remanded this case for further development In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim. This paperless file contains additional relevant documents, including VA treatment records, which have been reviewed in conjunction with this decision. (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 disability is not related to his military service. CONCLUSION OF LAW The Veteran does not have a right shoulder disability that is the result of disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield, 444 F.3d 1328; see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in February 2009 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The letter also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished. See Bernard v. Brown, 4 Vet. App. 384 (1993). The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file. These files together comprise the claims file. The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record, including testimony provided at a February 2012 hearing before the undersigned. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. In compliance with the Board's December 2012 remand, VA provided the Veteran with a medical examination in January 2013. This examiner reviewed the objective evidence of record, documented the Veteran's current complaints, performed a clinical evaluation, and then provided an opinion. Thus, VA has complied with the December 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis Certain disorders, such as arthritis, are presumed to have been incurred in service if manifested or aggravated within one year of separation from service to a degree of 10 percent or more, provided that the Veteran has served a minimum of ninety days either during a period of war or during peacetime service after December 31, 1946. 8 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.309; 3.307. A 10 percent evaluation for arthritis of the right shoulder would require x-ray evidence of arthritis and some limitation of motion or pain. See 38 C.F.R. § 4.71a, Diagnostic Code 5003. The record does not contain medical evidence from the relevant time period. However, a medical examination and x-ray from September 1957, just over one year after the Veteran's separation from service, referred to the Veteran's complaints of pain and popping, but did not find limitation of motion or x-ray evidence of arthritis. Thus, the evidence does not show that the Veteran's right shoulder arthritis manifested to a degree of 10 percent or more within one year of his separation from service. Therefore presumptive service connection is not warranted. Id. Even if the Veteran does not meet the requirements of 38 C.F.R. § 3.309, as here, the claims still can be reviewed to determine if service connection can be established on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (holding that the Veteran is not precluded from establishing service connection with proof of actual direct causation). In order to prevail on the issue of direct service connection, there must be competent and credible evidence of (1) a current disability, (2) in-service occurrence or aggravation of a disease or injury; and (3) a nexus between an in-service injury or disease and the current disability. See generally Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). In this case, the VA outpatient treatment records show diagnoses of bilateral acromioclavicular joint dysfunction and right shoulder impingement. The January 2013 VA examiner diagnosed the Veteran with arthritis and supraspinatus tendon fiber tear. As such, the current disability requirement is met. With regard to the in-service injury, the Veteran reported that he slipped and fell while performing maneuvers on Mount Fujiyama in Japan. See January 2011 DRO hearing transcript. The Veteran is competent to provide lay evidence of an in-service fall and subsequent treatment. 38 C.F.R. § 3.159(a)(2). The Veteran further reported that he sought treatment for this injury in service from a corpsman, but was told it was just a bruise. At the time of the 2013 examination, the Veteran stated that he was given ice packs and a heating pad and told to return to duty. The Veteran's service treatment records do not contain a diagnosis of or reflect treatment for a right shoulder disability in service. Indeed, his May 1956 separation examination noted normal upper extremities. The question then becomes whether the Veteran's lay evidence is found to be credible. In this regard, the Board notes that, at the time of his September 1957 VA examination, the Veteran denied any history of injury to his shoulder. Thus, the Veteran denied having an in-service injury to his right shoulder shortly after service but then reported an in-service injury several decades later. However, while his service treatment records do not corroborate his account of a right shoulder injury, there is a January 1955 treatment record referring to an in-service fall that resulted in a contusion (bruise) of the patella and quadriceps tendon. The Board affords the Veteran the benefit of the doubt, noting that the description of a fall resulting in a bruise is similar to the Veteran's reported injury and that a recorded injury to the Veteran's knee and thigh due to a fall does not preclude additional injuries to his arm and shoulder. Thus, the in-service injury requirement is satisfied with regard to this incident. Nevertheless, the lay evidence of record is inconsistent with regard to continued problems after the fall and whether the Veteran sought treatment in service or not. Given that inconsistency, the credibility of the lay evidence suggesting such treatment and continued treatment is significantly diminished and ultimately is not found to be persuasive. The Veteran has also submitted lay statements from his friends that note an injury in service and, in one case indicates that the Veteran reported to sick bay for treatment; however, neither of these friends has alleged personal knowledge of the Veteran's in-service injury, only that he told them of such an injury later. See lay statements dated June 2009 and October 2009. As such, their statements as to what the Veteran told them are cumulative of the Veteran's own statements and therefore are not helpful. See 38 C.F.R. § 3.159(a)(2). The January 2013 VA examiner opined that it was less likely than not that the Veteran's current tear of the supraspinatus tendon and acromioclavicular osteoarthritis was incurred in or caused by the Veteran's active duty service. In providing a rationale for this opinion, the examiner noted that the radiologic evidence did not show any disability until the 2010 MRI, which is more than 50 years after the Veteran's separation from service. Specifically, the x-ray findings during the intervening years included a 1994 x-ray prior to his December 1997 motor vehicle accident and a 2009 x-ray after that accident, which both showed a normal right shoulder. This medical opinion was based on review of the record and included a rationale that considered the Veteran's lay statements and the objective evidence of record. The record does not contain a positive medical nexus opinion. The Board acknowledges that the Veteran has recurrent right shoulder complaints dating back to shortly after his separation from service. See 38 C.F.R. § 3.303; see also Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)(allowing for service connection based on a continuity of symptomatology, not necessarily continuity of treatment, between a current disorder and service); Walker v. Shinseki, 708 F.3d 1331, (Fed. Cir. 2013). While the Veteran is not required to report every one of his ailments each time he seeks treatment for another, the Board notes that the Veteran did not mention any right shoulder symptoms at the time of his January 1994 general medical examination that was performed in conjunction with his claim for non-service connected pension, which claim implied consideration of all disabilities affecting the Veteran's well being. This is a significant break in a claim of continuous symptoms as the Veteran presumably would want to report all of his symptoms at that time so as to improve his chances of receiving a non-service connected pension. Furthermore, in response to the recorded complaints, the Veteran was provided with several x-rays of his right shoulder. The medical evidence of record contains multiple right shoulder x-rays from the first fifty years after the Veteran's separation, which all found a normal right shoulder without arthritis. This includes x-rays taken after the Veteran was injured in a motor vehicle accident and complained of an additional right shoulder injury. Notably, VA treatment records from June 2009 show a preliminary diagnosis of right shoulder degenerative joint disease, but the accompanying x-rays found a normal right shoulder. While the Veteran has stated that other currently unobtainable x-rays did show arthritis, the Board is limited to the medical evidence of record. The Board agrees with the January 2013 examiner that the eventual finding of arthritis in the November 2010 MRI is not persuasive evidence that the Veteran's earlier right shoulder complaints are attributable to this diagnosis. Thus, service connection is not warranted based on continuity of symptoms. Indeed, implicit in the examiner's opinion that no current disability is attributable to an injury in service is a finding that the Veteran's story regarding continued problems since the in-service injury is not to be believed. At the very least, the current disability is not traceable to the in-service injury or complaints of continued symptoms. To the extent that the Veteran himself believes his right shoulder disability was due to his military service, the Board acknowledges the holding in Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), in which it was held a lay person may speak as to etiology in some limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg. Here, however, the question of causation extends beyond an immediately observable cause-and-effect relationship as the Veteran's first diagnosis of record post-dates the alleged injury by half a century. As such, the Veteran is not competent to address etiology in the present case. The January 2013 medical opinion that was based on review of the record and included an opinion supported by clear rationale is persuasive. It has not been refuted with competent medical evidence that is equally persuasive. Therefore, service connection is not warranted. Based on the above, the claim of service connection for a right shoulder disability must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not help the claimant. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for a right shoulder disability is denied. _________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs