Citation Nr: 1316559 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 09-41 017 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for osteoarthritis of the acromioclavicular (AC) joint, left shoulder. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Murray, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1989 to August 1992. This matter comes before the Board of Veterans' Appeals (the Board) on appeal of a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied the Veteran's service-connection claim. On his October 2009 substantive appeal, VA Form-9, the Veteran indicated his desire to testify before a member of the Board at the RO. He was scheduled for such a hearing in November 2010. Subsequently, in November 2010, the Veteran informed the RO that he no longer desired a Travel Board hearing. As such, his hearing request is considered withdrawn. 38 C.F.R. § 20.704(e) (2012). A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDING OF FACT The evidence of record does not demonstrate that a relationship exists between the Veteran's current osteoarthritis of the acromioclavicular (AC) joint in his left shoulder and his period of active duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for osteoarthritis of the acromioclavicular (AC) joint of the left shoulder have not been met. 38 U.S.C.A. §§ 1101, 1131, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 1. VA's Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. The notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim, defined to include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) requires that notice to a claimant pursuant to the VCAA be provided "at the time" that, or "immediately after," VA receives a complete or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004). The RO provided the Veteran with adequate notice under the VCAA and Dingess specific to his service connection claim in letters dated in February 2010. Subsequently, in June 2010, the RO adjudicated the Veteran's claim in the first instance, and the Veteran filed a timely appeal as to the RO's determination. Accordingly, with respect to VCAA notice, there is no prejudice to the Veteran in the Board's proceeding with the issuance of a decision on the merits as to his left shoulder claim. Concerning the VA's duty to assist, the Board notes that the Veteran's service treatment records, his relevant post-service VA and private treatment records, and his lay statements of observation and argument have been obtained. The Veteran has not identified any outstanding evidence, to include any other medical records that are available and could be obtained to substantiate his claims. The Veteran was not afforded VA examinations to address his left shoulder claim. The Board is aware of the case of McLendon v. Nicholson, 20 Vet. App. 79 (2006), which held that an examination is required when (1) there is evidence of a current disability, (2) evidence establishing an "in- service event, injury or disease," or that 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. Here, a medical examination as to the Veteran's perfected service connection claim is unnecessary. With respect to the Veteran's left shoulder disorder, as discussed in more detail below, the evidence of record is against a finding that the Veteran incurred an in-service left shoulder disease or injury [McLendon element (2)]. Under these circumstances, a VA shoulder examination is not required. The facts of this case are different from the facts in Charles v. Principi, 16 Vet. App. 370 (2002), in which the Court held that VA erred in failing to obtain a medical nexus opinion where evidence showed acoustic trauma in service and a current diagnosis of tinnitus. Significantly, in this case the evidence does not support a finding that the Veteran was diagnosed with or treated for left shoulder problems in service. In short, the Board has carefully considered the provisions of the VCAA, in light of the record on appeal and, for the reasons expressed above, finds that the development of the Veteran's claim has been consistent with said provisions. The Board is satisfied that any procedural errors in the originating agency's development and consideration of the issues on appeal were insignificant and nonprejudicial to the Veteran. The Veteran has been accorded ample opportunity to present evidence and argument in support of his claim. See 38 C.F.R. § 3.103 (2012). He has retained the services of a representative, and he declined his opportunity to testify at a personal hearing before a Veterans Law Judge. Therefore, the duties to notify and assist have been met. 2. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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. 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. See 38 C.F.R. § 3.303(b). The chronicity provision of 38 U.S.C.A. § 3.303(b) is applicable where the evidence, regardless of its date, shows that the Veteran had a chronic condition in service or during an applicable presumption period and still has such condition. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Certain chronic diseases, although not shown in service, may be presumed to have incurred in or aggravated by service if they become manifested to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. To prevail on the issue of service connection, 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). The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104(a); Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). If there is at least an approximate balance of positive and negative evidence regarding any issue material to the claim, the claimant shall be given the benefit of the doubt in resolving each such issue. 38 U.S.C.A. § 5107; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); 38 C.F.R. § 3.102. On the other hand, if the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz, 274 F.3d at 1365. In this case, the Veteran claims entitlement to service connection for osteoarthritis of the acromioclavicular (AC) joint of his left shoulder (left shoulder disorder). He essentially contends that his current left shoulder disorder is related to the left shoulder pain he first experience in service. The Veteran reports that he first experienced left shoulder pain during his period of service, and he has continued to experience similar pain since then. As noted above, in order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus or relationship between the two. See Shedden v. Principi, 381 F.3d at 1167. With respect to element (1), the medical evidence of record demonstrates that the Veteran has a current diagnosis of osteoarthritis in the acromioclavicular joint of the left shoulder. See a December 2008 VA Magnetic Resonance Imaging (MRI) report. It is clear that element (1), current disability, is satisfied. With respect to crucial Hickson element (2), in-service disease or injury, the Board will separately discuss disease and injury. Concerning in-service disease, the Board notes that the Veteran's service treatment records fail to demonstrate any complaints of, or treatment for any left shoulder problems in-service. Most significantly, the Veteran's June 1992 separation examination reflected a normal evaluation of his upper extremities, and the Veteran specifically denied any history of trick or painful shoulder. Accordingly, in-service disease involving the left shoulder has not been demonstrated. No evidence of record demonstrates that arthritis of the left shoulder joint, as shown on x-ray, had its onset within the Veteran's first post-service year. Rather, the first diagnostic evidence of arthritis is not shown until December 2008, more than a decade after the Veteran's separation from service. As such, service connection for arthritis of the left shoulder joint may not be presumed under the provision of 38 C.F.R. § 3.307 and 3.309(a). Concerning in-service injury, the Board observes that the Veteran has not asserted, and the evidence of record does not demonstrate, that suffered a specific injury or trauma to his left shoulder during his period of service which ultimately led to his current diagnosed disorder. Therefore, in-service injury is also not demonstrated, and Hickson element (2) remains unsatisfied. The Veteran's claim fails on this basis. For the sake of completeness, with respect to Hickson element (3), nexus or relationship, in the absence of any left shoulder injury or disease in service, such an opinion would appear to be futile. Indeed, the Veteran has not provided any objective evidence demonstrating a relationship between his current osteoarthritis in the acromioclavicular joint of the left shoulder and his military service. The Veteran has had ample opportunity to secure medical evidence in his favor and submit the same to VA. He has not done so. See 38 U.S.C.A. § 5107(a) [it is a claimant's responsibility to support a claim for VA benefits]. The Board is of course aware of the provisions relating to continuity of symptomatology under 38 C.F.R. § 3.303(b), as an alternative method of establishing the second and third service-connection element for certain chronic diseases, including arthritis, is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013);see also Savage, 10 Vet. App. at 495-97. Indeed, the Veteran has asserted at times during the appeal period that he has experienced left shoulder pain since his service period to the present day. The Board acknowledges that the Veteran has reported that he first experienced left shoulder pain in service and he has continued to experience similar pain since then. See the recorded medical history noted in an August 2008 VA treatment record. Indeed, the Veteran is competent to describe his in-service experiences and observations of pain symptomatology. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303 (2007). Competency of evidence, however, differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter 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, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ["although interest may affect the credibility of testimony, it does not affect competency to testify"]. The Court of Appeals for Veterans Claims has made clear that the Board cannot determine that competent lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In this case, the Veteran has been inconsistent as to his reports. At the time of his separation from service, he denied having/having had shoulder problems. Additionally, post-service private treatment records dated in 1998 do not demonstrate any compliants of left shoulder problems. The subsequent August 2008 VA treatment records, however, reflect that the Veteran reported to his treating medical providers that he had experienced left shoulder problems since his period of service. The Veteran's reports of the continuity of his left shoulder problems have not always been consistent, especially at the time of his separation from service. The Board does not find the Veteran's assertions of in-service pain and continuity of pain carry probative value given the inconsistency of his statement at the time of his separation from service in June 1992. Moreover, the Board finds his statement of continuity of symptoms since service lacks credibility in light the absence of post-service treatment for continuing pain. There is no indication of any symptomatology affecting the Veteran's left shoulder in his service treatment records, or at any time for decades following service. Indeed, it was not until 2008 [more than sixteen years following the Veteran's separation from service and around the time he filed his current claim for service connection] when the Veteran first reported an ongoing left shoulder pain to VA. The Board is aware of the holding in Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006), which notes that the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the veteran's ability to prove his claim of entitlement to disability benefits based on that competent lay evidence. However, Buchanan also states that, as the finder of fact, the Board is permitted to determine whether lay evidence is credible "in and of itself, i.e., because of possible bias, conflicting statements, etc." Id. at 1337. The Board may also "weigh the absence of contemporaneous medical evidence against the lay evidence of record." Id. In this case, there is contemporaneous evidence of record that specifically contradicts the Veteran's assertion that he has had continuous problems with his left shoulder problems during and since his active duty service. The Board places greater weight of probative value on the Veteran's normal upper extremity examination administered upon separation from service in 1992 than it does on his recent statements to VA. See Curry v. Brown, 7 Vet. App. 59, 68 (1994) [finding that contemporaneous evidence has greater probative value than history as reported by the veteran]; see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [noting that VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence]. Moreover, the Veteran's absence of left shoulder complaints [during service and for over a decade after his separation] also weighs against the Veteran's assertions of continuity. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) [noting that it was proper to consider the veteran's entire medical history, including the lengthy period of absence of complaint with respect to the condition he now raised]; see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) [affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of the claimed condition]. Finally, as was discussed above, there is no objective evidence of record indicating that the Veteran's current left shoulder disorder is as likely as not related to his military service. Thus, supporting medical evidence of continuity is also lacking in this case. For the reasons identified above [i.e. the Veteran's contemporaneous treatment reports identifying "normal" upper extremity evaluation upon separation, the absence of complaint or treatment for any left shoulder problems in-service and for over sixteen years following service, the absence of any current objective medical evidence, and the Veteran's potential bias], the Board finds that the Veteran's lay testimony lacks credibility and in turn probative value, when considered in relation to all of the evidence of record as a whole. Continuity of symptomatology since service is therefore not demonstrated. Accordingly, Hickson element (3), relationship or nexus, has not been satisfied, and the Veteran's service connection claim fails on this basis as well. The benefit of the doubt rule is not for application because the evidence is not in relative equipoise. ORDER Entitlement to service connection for osteoarthritis of the AC joint, left shoulder is denied. ____________________________________________ LANA K. JENG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs