Citation Nr: 1317248 Decision Date: 05/28/13 Archive Date: 06/06/13 DOCKET NO. 10-11 631 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE Entitlement to service connection for left shoulder disability. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD N. L. Rippel, Counsel INTRODUCTION The Veteran served on active duty from August 1952 to August 1954, and from October 1954 to October 1957. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2007 rating decision by the Chicago, Illinois Regional Office (RO) of the United States Department of Veterans Affairs (VA). In November 2012, the Veteran failed to appear at a videoconference hearing before a Veterans Law Judge that had been scheduled at his request. He has not provided good cause for his failure to appear, nor has he requested that the hearing be rescheduled. The hearing request is considered withdrawn. In February 2013, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA). The requested opinion was received by the Board, and in March 2013 the Board informed the Veteran that it had requested a specialist's opinion and provided a copy of the opinion. The representative provided additional argument in May 2013. 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 current left shoulder disability is not etiologically related to his periods of active service, to include to the established injury in Korea. CONCLUSION OF LAW A left shoulder disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks entitlement to service connection for a left shoulder disability. The Board will first discuss certain preliminary matters and will then address the legal criteria and the facts of the case at hand. The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), 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. Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes that the 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 timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The record reflects that prior to the initial adjudication of the claim, the Veteran was mailed a letter in June 2007 advising him of what the evidence must show and of the respective duties of VA and the claimant in obtaining evidence. The June 2007 letter also provided the Veteran with appropriate notice with respect to the disability-rating and effective-date elements of his claims. The record also reflects that pertinent post-service medical records have been obtained and that the Veteran has been afforded a VA examination. In addition, a VHA opinion was obtained in March 2013. The VHA report reflects that the VA examiner reviewed the Veteran's past medical history, recorded his current complaints, and rendered an opinion consistent with the remainder of the evidence of record. The Board concludes that this opinion report is adequate for purposes of rendering a decision in the instant appeal. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. Unfortunately, the Veteran's complete service treatment records are unavailable due to a fire-related incident. The sole record available consists of his July 1957 separation examination for his second period of service. Attempts were made to obtain Morning Reports and medical treatment records in the custody of the Office of the Surgeon General (SGO). However, results of those searches were negative. In light of the apparent absence of a portion of the service treatment records (STRs), the Board has a heightened duty to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (the BVA has a heightened duty in a case where the service treatment records are presumed destroyed). With respect to the VCAA, the Board finds that this heightened duty has been met. The Veteran has indicated he did not seek treatment in service or for years following service. The record shows that the Veteran was informed in January 2010 that the RO's attempts to obtain the complete STRs were not completely successful. The statement of the case again informed the Veteran that complete records were not available. In sum, the Veteran has been notified of the type of evidence that would tend to substitute for his missing STRs, and the RO has made extensive efforts to obtain all outstanding STRs. There is no indication that additional pertinent records exist or that any additional notice would be productive. In short, all appropriate development to obtain the Veteran's pertinent, available service and post-service records (including VA and private treatment records) has been completed. Neither the Veteran nor his representative has identified any other evidence that could be obtained to substantiate the claim. The Board also is unaware of any such evidence. Therefore, the Board is satisfied that the originating agency has complied with the duty to assist requirements of the VCAA and the pertinent implementing regulation. Accordingly, the Board will address the merits of the claims. Legal Principles Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after 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 order to establish service connection for the claimed disorder, 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 Board notes the Veteran has alleged service under combat conditions during Korean war-era service, as the incident he describes occurred while he was in South Korea in 1953. In Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996), the United States Court of Appeals for the Federal Circuit held that under 38 U.S.C.A. § 1154(b), a combat veteran's assertions of an event during combat are to be presumed if consistent with the time, place and circumstances of such service. However, 38 U.S.C.A. § 1154(b) does not establish service connection for a combat veteran; it aids him or her by relaxing the adjudicative evidentiary requirements for determining what happened in service. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis On his June 2007 claim for service connection for a left shoulder disability, the Veteran alleged that he suffered a left shoulder injury in 1953 but received no treatment. He has since indicated that he hurt his left shoulder during combat as part of the 45th Infantry Division while driving with the 245th Tank Battalion. The Veteran urges that while on active duty in South Korea in 1951, he injured his shoulder when he had to run for cover from enemy fire, as he had to jump under his tank. In November 2009 argument, his representative notes that his case should be viewed as that of a combat Veteran due to his duties. Thus, the representative argues that 38 U.S.C.A. § 1154(b) applies. The Veteran's DD 214 shows that he was in the army armor division and that he was in a tank battalion with 120 mm guns. His medals and awards reflect he received the Korean Service medal, National Defense Service medal, United Nations service medal and good conduct medal. He was a heavy vehicle driver with one year of foreign service. In consideration of the Veteran's service, the Board finds that 38 U.S.C.A. § 1154(b) applies. Thus, like the RO, the Board will accept his assertions as to the aforementioned tank incident. Service treatment records are unavailable for the period from August 1952 to August 1954. A July 1957 report of separation physical examination shows no abnormality of the shoulders, and the Veteran did not report any shoulder complaints. Clinical evaluation of the upper extremities and the musculoskeletal system were normal. Post-service, the medical record contains no evidence of any treatment, complaints, or diagnosis related to the left shoulder until a June 2002 VA X-ray showed degenerative joint disease. This X-ray had been conducted in conjunction with a screening because the Veteran had been diagnosed with prostate cancer. The Veteran was afforded a VA examination in June 2012. The noted diagnosis was shoulder contusion. In February 2013, the Board asked a qualified VHA physician to address whether it was at least as likely as not that any current left shoulder disability, including degenerative arthritis, was related to active service, and specifically to the incident the Veteran describes. The Board made it clear to the physician that the Veteran's account of the event in service was to be accepted in forming the opinion as to etiology. In March 2013, the VHA physician responded that, having reviewed the record, it was not at least as likely as not that the left shoulder condition was related to service. The examiner stated that the evidence was not so evenly divided that it would be medically sound to find in favor of the proposition that the left shoulder disability is due to service. He opined that it was far more likely that the left shoulder condition was due to wear and tear over the decades of use and the typical pathological process of osteoarthritis as opposed to the left shoulder condition being posttraumatic arthritis due to the injury he sustained in 1953. He cited supportive evidence including the amount of time between the initial injury and the presentation of disability. He pointed out that if the injury had been severe enough to have caused posttraumatic arthritis, the doctor would have expected symptoms that were troubling enough to bring to the attention of a doctor within 10 years and certainly within 20 years. He also noted the Veteran's advanced age and explained that osteoarthritis is more likely to present at that time than posttraumatic arthritis, which usually starts at a younger age. He noted the injury was minor enough to not be mentioned in the separation physical examination or medical history of July 1957. It was also minor enough that the Veteran did not claim to have multiple manipulations, which would have been the case with recurrent dislocations, an injury that could lead to posttraumatic arthritis. Finally, he noted that it was minor enough that the Veteran did not claim to have had a period of prolonged immobilization or surgical procedure like open reduction and internal fixation of an intra-articular fracture, which is an injury that could lead to posttraumatic arthritis. Following a review of the record, the Board finds that the preponderance of the evidence is against the claim. Although the Board accepts the Veteran's assertions as to the in-service injury, the Board notes that the competent evidence regarding a nexus to his service is against the claim. The Board finds the VHA report to be probative as it was definitive, based upon a complete review of the Veteran's entire claims file, and supported by detailed rationale. Accordingly, the opinion is found to carry significant weight. Among the factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The Veteran has not provided any competent medical evidence to rebut the opinions against the claim or otherwise diminish its probative weight. See Wray v. Brown, 7 Vet. App. 488, 492-93 (1995). He has been accorded ample opportunity to furnish medical and other evidence in support of his claim; he has not done so. See 38 U.S.C.A. § 5107(a) (2012) (noting it is a claimant's responsibility to support a claim for VA benefits). Therefore, Hickson element (3), nexus, has not been satisfied, and the claim for service connection for left shoulder disability fails. The Board has carefully considered the Veteran's correspondence to VA in which he alleges that his left shoulder disability is related to the injury in service. As provided by 38 U.S.C.A. § 1154(a), VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. With specific regard to lay evidence, the type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). For example, lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition, the layperson is reporting a contemporaneous medical diagnosis, or lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). With specific regarding to the nexus element, although without describing specific situations, the Federal Circuit also has explicitly rejected the view that medical evidence is necessarily required when the determinative issue is etiology. See id., at 1376-77. In short, the Board cannot determine that lay evidence as to diagnosis and nexus lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In this case, the Veteran has not provided any reasons he believes his current disability is related to his service, other than to say that he experienced an injury while diving under a tank. He has not provided any underlying reasons for not seeking treatment from 1951 to 2002, nor provided any statements to the effect of how he self-treated the alleged disability during that time. He has not spoken directly to experiencing pain or other symptoms during that fifty year period. In short, the Veteran has not provided any reasons as to why he believes the current injury is related to his service. By contrast, the reviewing physician has provided medical reasons for his conclusion that there is no relationship between the current disability and the Veteran's service. Those reasons appear rational on their face and are supported by the record. As such, the Board affords significant probative value to the physician's opinion, while it affords little probative value to the Veteran's opinion. Therefore, the Board concludes that neither the medical nor lay evidence of record establishes the presence of a left shoulder disability related to service during the pendency of this claim. There is no competent evidence linking any current left shoulder disability to service. Accordingly, service connection is not warranted for this claimed disability. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine, but has determined that it is not applicable to this claim because the preponderance of the evidence is against the claim. Gilbert, 1 Vet. App. 49, 54 . ORDER Entitlement to service connection for left shoulder disability is denied. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs