Citation Nr: 1318676 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 08-34 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a right hip disability. 2. Entitlement to service connection for a left shoulder disability. ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active service from February March 1984 to March 2007, including decorated combat service in Southwest Asia. His decorations include a Bronze Star with "V" device, a Combat Infantryman Badge, and a Purple Heart Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In March 2010, the Board denied service connection for a right hip disability and remanded the issue of service connection for a left shoulder disability. In May 2012, the Board vacated the March 2010 decision regarding the right hip disability and remanded both the right hip and left shoulder issues for further development, to include a review of VA medical records and to obtain an addendum medical nexus opinion. A nexus opinion was obtained in January 2013 and the RO reviewed all records prior to issuing a supplemental statement of the case in January 2013. Therefore, a review of the record indicates that the Board's directives were substantially complied with. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran was originally represented by John S. Berry, Attorney at Law; however, in November 2011 the attorney contacted the VA requesting to withdraw his power of attorney. The Veteran was notified and provided with notice of how to appoint a representative to assist him in this appeal. As he has not provided the information of any new representative, he remains unrepresented in this appeal. FINDINGS OF FACT 1. The Veteran's mild degenerative arthritis of the left shoulder had its onset in service. 2. The Veteran does not have a diagnosed disability of the right hip. 3. The Veteran's complaints of right hip pain have not been independently corroborated. CONCLUSIONS OF LAW 1. Degenerative arthritis of the left shoulder was incurred in service. 38 U.S.C.A. §§ 1110, 1117, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2012). 2. The criteria for service connection for a right hip disability have not been met. 38 U.S.C.A. §§ 1110, 1117, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.317 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2010), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The record shows that through a VCAA letter dated April 2007, the Veteran was informed of the information and evidence necessary to substantiate the claims for service connection. He was also advised of the types of evidence VA would assist in obtaining, as well as his own responsibilities as to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims (Court) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. Further, the notice requirements apply to all five elements of a service connection claim: 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA letter to the Veteran was provided in April 2007 prior to the initial unfavorable decision in June 2007. In this case, the Veteran was advised of the criteria for rating a disability and those governing effective dates of awards in the April 2007 letter, prior to the most recent adjudication by the RO, which cures any timing deficiency. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The Board also finds that there has been compliance with the VCAA assistance provisions. The record in this case includes service treatment records, VA examination reports, VA treatment records, private treatment records, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case, and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the Veteran. The Veteran was afforded VA examinations in May 2007, November 2011, and December 2012 (with an addendum in January 2013). 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Board notes that the examiners were provided with an accurate history, the Veteran's history and complaints were recorded and the examination reports set forth detailed examination findings. As such, the examination reports are adequate to decide the claims of service connection. Thus, further examination is not necessary regarding the issues on appeal. Service Connection - Laws and Regulations Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C.A. § 1154(a); 38 C.F.R. § 3.303(a). In some circumstances, certain chronic diseases listed at 38 C.F.R. § 3.309(a) may be presumed to have been incurred in service if manifest to a compensable degree within one year from discharge from service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307 are also satisfied. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.309. For the showing of chronic disease in service, there are required a combination of manifestations sufficient to identify a disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word chronic. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. However, the continuity and chronicity provisions of 38 C.F.R. § 3.303(b) only apply to the chronic diseases enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997) (applying 38 C.F.R. § 3.303(b) to a chronic disease not listed in 38 C.F.R. § 3.309(a) as "a substitute way of showing in-service incurrence and medical nexus.") Pertinent to the case at hand, arthritis is among the list of chronic diseases listed within 38 C.F.R. § 3.309(a). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 C.F.R. § 7104(a) (West 2002). Moreover, the Court has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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 absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Service Connection - Left Shoulder The Veteran contends that he has a left shoulder disability that is causally related to service. The service treatment records show that the Veteran was seen on numerous occasions during service for left shoulder problems. The Veteran was discharged from active duty in March 2007 and filed a claim of service connection for left shoulder disability. He was afforded a VA examination in May 2007. The Veteran reported that he pulled his muscles in the pectoralis, trapezius, rhomboid area in 1998. He was in a vehicle that was blown up. Ever since, the Veteran reports pain in those areas when he does pushups or pull-ups. The examiner performed a thorough musculoskeletal examination and found a normal left shoulder exam. As noted in the Board's May 2012 remand, the Board finds that the Veteran has competently and credibly reported having left shoulder problems since service. In fact, as noted in the March 2010 remand, the service treatment records show that he received care for this condition on several occasions. In November 2011, he was afforded a VA examination, the report of which shows that he complained of having moderate to severe flare-ups several times a day. The Veteran was afforded another VA examination of the left shoulder in November 2011. The examiner reviewed the Veteran's history and performed a physical examination. The examiner noted that while in the military the Veteran had transient problems involving the left shoulder, which were either that of a muscle spasm or a muscular strain. These conditions are self limiting and resolve with conservative, non operative measures and do not result in a chronic medical condition. The examiner noted no ongoing sick visits dealing with a left shoulder condition in the military that established either chronicity or residuals. The history and physical examination near separation do not mention any left shoulder problems or left shoulder abnormalities on examination. The examiner also noted the lack of any records currently in the VA or the private sector dealing with a left shoulder issue that resulted in the establishment of a chronic medical condition affecting the left shoulder. Consequently the examiner opined that the Veteran's current left shoulder condition could not be related to a left shoulder problem in the military since one did not exist then or currently. The Veteran was afforded a final VA examination in December 2012. The examiner noted that the Veteran has a left shoulder disability. Specifically that the Veteran had X-rays of the left shoulder completed in November 2011 and they showed he had mild degenerative arthritis, which the examiner stated accounted for the Veteran's complaints and physical examination findings. In a January 2013 addendum, a VA examiner indicated that the Veteran's left shoulder disability was not caused by trauma sustained in parachute jumps. Instead, the examiner attributed the disability to activities involving both range of motion and weight bearing, and that it was the constant use of the joint over many years that caused the Veteran to develop degenerative arthritis of the left shoulder. Thus, given the Veteran's in-service activities, his lengthy period of active duty, the timing of his application for service connection, his competent and credible reports of left shoulder problems during and since service, and the impression offered by the VA examiner in the January 2013 addendum, the Board finds that the evidence supports his claim of service connection for degenerative arthritis of the left shoulder. As such, service connection is warranted. Service Connection - Right Hip The Veteran reported pain in his right hip during service. He was afforded a VA examination in May 2007. The examiner noted the Veteran's complaint of pain in the left hip after an injury during service in February 2005. The examiner performed a thorough physical examination and noted a normal right hip exam. The remainder of the Veteran's records fails to show any diagnosed right hip disability. Without evidence of a current disability related to service, service connection may not be granted. The Court has held that "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Specifically, the Board notes that pain alone without a diagnosed or identifiable underlying malady or condition does not in and of itself constitute a disability for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). Additionally, service connection may be established for a chronic disability manifested by certain signs or symptoms which became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2011, and which, by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). Objective indications of a 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. 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. A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from the VA's Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability referred to in this section shall be considered service-connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317(a)(2-5). Manifestations of an undiagnosed illness include, but are not limited to, fatigue, skin lesions, headache, muscle pain, joint pain, neurological signs or symptoms, neuropsychological signs or symptoms, signs or symptoms involving the respiratory system, sleep disturbances, gastrointestinal signs or symptoms, cardiovascular signs or symptoms, abnormal weight loss, or menstrual disorders. See 38 C.F.R. § 3.317(b). Compensation availability includes medically unexplained chronic multisymptom illnesses, such as fibromyalgia, chronic fatigue syndrome, and irritable bowel syndrome, as well as any diagnosed illness that the Secretary determines by regulation to be service-connected. See 38 C.F.R. § 3.317(a)(2)(i). The Board notes that the Veteran has provided a history of hip pain after he came off a tall wall during an assault in February 2005. The Board finds that the Veteran's hip claim does not meet the criteria for an undiagnosed illness. The evidence relating to the claimed disability must incorporate objective indications of a chronic disability including 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. Here, the Board notes no such objective evidence or non-medical indicators. The evidence asserting that the Veteran has hip pain includes his claim and his history as related for VA compensation purposes. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the Veteran's statements, it may consider whether self-interest may be a factor in making such statements). Additionally, the Veteran asserts that his hip pain began in February 2005, yet in an October 2005 report of medical history he noted no hip pain or other hip complaint. In his November 2006 separation report of medical history, the Veteran again did not note any hip pain or complaints and the flight surgeon that provided a summary of the Veteran's numerous disabilities and complaints did not include it in his review either. The corresponding separation report of medical examination again found no hip disability. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (upholding Board decision giving higher probative value to a contemporaneous letter the veteran wrote during treatment than to his subsequent assertion years later). The only post-service medical examination of the hip was provided during a VA examination in May 2007. The examiner noted normal range of motion of the hip with no objective evidence of pain on range of motion testing. The record contains no objective medical evidence of the signs and symptoms of an undiagnosed illness manifested by hip pain. Additionally, the record contains no non-medical indicators that are capable of independent verification, such as lay statements from witnesses of the Veteran's hip pain. Without evidence of this sort and given the Veteran's prior lack of complaints of hip pain, the Board finds that the Veteran's disability does not meet the criteria for service connection of an undiagnosed illness. In the absence of competent evidence of a current disability manifested by right hip pain or objective medical evidence and non-medical indicators of the Veteran's hip pain, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard of proof does not apply. 38 U.S.C.A. § 5107(b). ORDER Service connection for degenerative arthritis of the left shoulder is granted. Service connection for a right hip disability is denied. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs