Citation Nr: 1319676 Decision Date: 06/18/13 Archive Date: 06/27/13 DOCKET NO. 07-37 994A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUE Entitlement to service connection for a right shoulder disability, to include as secondary to service-connected disability. REPRESENTATION Appellant represented by: New Jersey Department of Military and Veterans' Affairs ATTORNEY FOR THE BOARD Nadine W. Benjamin, Counsel INTRODUCTION The Veteran served on active duty from February 1977 to August 1983. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and Insurance Center in Philadelphia, Pennsylvania. Jurisdiction over the case was subsequently transferred to the RO in Newark, New Jersey. In April 2009, August 2010, March 2012 and December 3012, this case was remanded for additional development. The case has been returned to the Board for further appellate action. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDING OF FACT A right shoulder disability was not present until more than one year following the Veteran's discharge from service, is not etiologically related to service, and was not caused or permanently worsened by service-connected disability. CONCLUSION OF LAW A right shoulder disability was not incurred in or aggravated by active service, the incurrence or aggravation of arthritis of the right shoulder during active service may not be presumed, and right shoulder disability is not proximately due to or the result of service-connected disability. 38 U.S.C.A. §§ 1101, 1112, 1131, 1137 (West 2002); 38 C.F.R. § 3.310 (2006); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist 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. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), 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 RO provided the appellant notice by letters dated in June 2006 and August 2010. Although the Veteran was not provided complete notice until after the initial adjudication of the claim, the Board finds that there is no prejudice in proceeding with the issuance of a final decision. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the claim. There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time. See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). The duty to assist was also met in this case. All pertinent service treatment records, private treatment records, and VA treatment records have been obtained. VA examinations with respect to the issue on appeal were obtained. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the March 2013 VA examination report is adequate. The examiner considered all of the pertinent evidence of record and the statements of the Veteran, and specifically provided a rationale for the opinions stated, relying on and citing to the records reviewed. Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. Accordingly, the Board will address the merits of the claim. Legal Criteria Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Where a veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. Service connection may be granted for disability which is proximately due to or the result of service-connected disability. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). During the pendency of this claim, 38 C.F.R. § 3.310 was amended, effective October 10, 2006. The amendments to this section are not liberalizing. Therefore, the Board will apply the former version of the regulation. 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 a 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. Factual Background The Veteran does not contend and the evidence does not show that he had a right shoulder disorder in service or until many years thereafter. The Veteran has asserted that he has a right shoulder disorder as a result of his service-connected lumbosacral spine disability and/or his service-connected bilateral knee disability. Specifically, he contends that he injured his right shoulder in 2001 while conducting a drug raid. He asserts that while lifting his knee over shoe boxes on the floor, he tripped, landed on his right hand and injured his right shoulder. In September 2001, private medical records show that the Veteran underwent an MRI of the right shoulder, status post injury. The Veteran was found to have rotator cuff tendinopathy. There was no evidence of a full thickness tear. In November 2001, the Veteran complained of right shoulder pain to a private physician. The physician noted that the Veteran may have shoulder instability. In February 2002, the Veteran sought private treatment for his right shoulder, noting that while involved in a drug raid in June 2001, he fell and pulled his right shoulder. A complete MRI of the right shoulder revealed a rotator cuff tendinopathy. The Veteran was diagnosed with right shoulder tendonitis with some mild instability. In January 2006, the Veteran had a private MRI of his right shoulder, based on an undescribed injury that occurred two months prior to this date. The MRI revealed cuff tendinosis and an insertional tear of the supraspinatus. There was also a suggestion of a small tear involving the posterosuperior quadrant of the labrum. In May 2006, the Veteran underwent a right shoulder arthroscopic subacromial decompression and mini open rotator cuff repair. The Veteran was found to have right shoulder impingement and rotator cuff tear. The Veteran was examined by VA in July 2006. His right shoulder was examined and the examiner found that the Veteran had a right shoulder injury nonservice-connected with rotator cuff tear status post corrective surgery in May 2006. In response to the Board's April 2009 remand, the Veteran was afforded a VA examination in March 2010 in which the examiner was unable to opine as to whether the Veteran's right shoulder disability was related to his service-connected disabilities without resort to speculation. An April 2010 VA MRI showed pertinent findings of partial interstitial and interventricular tears of the anterior distal infraspinous tendon, post-surgical changes of 2 suture anchors in the anterolateral aspect of the right humeral head, partial interstitial tear and tendinopathy/tendinosis of the distal subscapularis tendon, and mild degenerative osteoarthritic changes in the right acromioclavicular joint. In August 2010, the Board remanded the claim specifically for the examiner to consider the Veteran's lay statements of his injury and for a supplemental opinion based on these statements. In a September 2010 VA opinion, the original examiner concluded that it was less likely than not that the Veteran's right shoulder disability was related to his service-connected knee and back disorders. As rationale, the examiner noted that in an August 2007 examination, the Veteran had no weakness in his lower extremities. In December 2011, the Veteran submitted a statement noting that his right shoulder injury occurred as a result of his lower extremity radiculopathy. He stated that he was walking after sitting in the car for a long time, and he fell because his leg gave out due to his radiculopathy. In response to a December 2012 Board remand, the Veteran was examined by VA in March 2013. The claims files were reviewed. His history was noted and the right shoulder was evaluated. The examiner diagnosed right shoulder impingement syndrome, status post right shoulder rotator cuff tear, right shoulder rotator cuff tendinitis, mild rotator cuff teas (sic) as per MRI dated April 10, 2010. The examiner stated that based on the claim files, the Veteran's history, and his examination, he believed the current right shoulder condition is not related to military service. This was noted to be based on the Veteran's stating that he injured his shoulder secondary to his knee injuries. It was noted that as stated by a VA examiner in the past, on previous evaluation of the lower extremities there was no evidence of his back injury which would cause weakness which would cause the Veteran to fall. It was stated that also the examiner did not feel that the Veteran's knees were unstable dating back to 2001-2006. It was noted that on examination in August 2007, there was no instability of either knee on examination. The examiner indicated that also there was no weakness of the lower extremities due to the back injury. The examiner reported that the Veteran had good strength and good sensation of both lower extremities so he did not see why either the knees or the back would have caused the Veteran to fall. In an April 2013 addendum, the examiner noted that after reviewing the lays statement from June 2006 and December 2007, the March 2010 VA examiner reported that his opinion is unchanged and remained the same. Analysis In this case, medical evidence of record demonstrates that the Veteran is currently diagnosed with multiple right shoulder disorders. It is also undisputed that the Veteran is currently receiving VA compensation benefits for a lumbosacral spine disability and for right and left knee disabilities. However, a nexus between the Veteran's current right shoulder and his service-connected disorders is not shown. In the March 2010 VA examination the examiner was unable to provide a nexus opinion without resorting to speculation. In the September 2010 VA opinion, the examiner did not consider the lay statements of the Veteran or offer complete rationale. Thus the findings are inadequate. In contrast, the March 2013 VA examiner in conjunction with the April 2013 addendum, came to the conclusion in his examination report and medical opinion that the Veteran's right shoulder condition were less likely than not (less than 50 percent probability) proximately due to or the result of his service-connected disabilities. The examiner provided a complete rationale for his stated opinions, cited to his review of the claims files, examination of the Veteran and consideration of the lay statements. Additionally the opinion stands uncontradicted in the record. As such, the Board finds that the most persuasive evidence that specifically addresses the question of whether the Veteran's service-connected lumbosacral disability and/or his bilateral knee disability proximately caused or aggravated his current right shoulder disorders weighs against the claim. Hayes v. Brown, 5 Vet. App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992)). See also Guerrieri v. Brown, 4 Vet. App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). The Board acknowledges the Veteran's contentions that the post-service injury of his right shoulder was due to his service-connected back and knee disabilities. The Board also acknowledges that the Veteran is competent to state that he experienced radiating pain from his back to his leg at the time of the fall and that he experienced lower body fatigue prior to the injury in question. However, the Veteran's statements are self serving. In addition, his statements were considered by the March 2013 examiner. In the Board's opinion, the March 2013 opinion prepared by an objective medical professional is more probative than the Veteran's statements. Accordingly, the Board must conclude that service connection is not warranted for the Veteran's right shoulder disability. In arriving at the decision to deny the claim, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. ORDER Entitlement to service connection for a right shoulder disability, to include as secondary to service connected disability, is denied. ____________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs