Citation Nr: 1319950 Decision Date: 06/20/13 Archive Date: 07/02/13 DOCKET NO. 09-08 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to service connection for a right shoulder disability. REPRESENTATION Veteran represented by: Missouri Veterans Commission ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran, who is the appellant, had active duty for training in the National Guard from September 1987 to April 1988 and he had federalized active duty from with the National Guard from December 2003 to January 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in April 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2012, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT A right shoulder disability, a tumor of the humerus and osteoarthritis, was not affirmatively shown to have had onset during service; a tumor of the humerus and osteoarthritis were not manifested to a compensable degree within one year from the date of separation from service; and a current right shoulder disability, a tumor of the humerus and osteoarthritis, is unrelated to an injury, disease, or event in service, including service in the Persian Gulf. CONCLUSION OF LAW The criteria for service connection for a right shoulder disability, a tumor of the humerus and osteoarthritis, have not been met. 38 U.S.C.A. § 1110, 1112, 1131, 1137, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.317 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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, 484-86 (2006) (notice of the elements of the claim). The RO provided pre-adjudication VCAA notice by a letter dated in October 2007. As for the content and the timing of the VCAA notice, the document complied with the specificity requirements of Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002) (identifying evidence to substantiate a claim and the relative duties of VA and the claimant to obtain evidence); of Charles v. Principi, 16 Vet. App. 370, 374 (2002) (identifying the document that satisfies VCAA notice); of Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004) (pre-adjudication VCAA notice); and of Dingess v. Nicholson, 19 Vet. App. 473 (2006) (notice of the elements of the claim). Duty to Assist Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained the Veteran's service treatment records, service personnel records, and VA and private medical treatment records. The Veteran was afforded VA examinations in November 2010 and November 2011. An addendum report was received in February 2013. The Board has reviewed the reports of the examinations and the addendum report and finds that the reports are adequate as the VA examiners considered the Veteran's history and described the right shoulder disability in sufficient detail so that the Board's decision is a fully informed one. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.159(c)(4). As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. Principles and Theories of Service Connection Active service includes active duty and any period of active duty for training (ACDUTRA) during which the individual concerned was disabled from a disease or injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24). The term ACDUTRA includes federalized service in the National Guard. 38 C.F.R. § 3.6(c)(1). A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in line of duty in active military service or for aggravation of a preexisting injury suffered or disease contracted in line of duty in active military service. 38 U.S.C.A. §§ 1110 and 1131. Generally, to establish entitlement to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement. All three elements must be proved. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). In this case, several legal theories operate in conjunction with 38 U.S.C.A. §§ 1110 and 1131 as implemented in 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated by service. This may be accomplished by affirmatively showing inception or aggravation during service. 38 C.F.R. § 3.303(a). For a Veteran who served 90 days or more of active service after December 31, 1946, there is a presumption of service connection for a malignant tumor or arthritis if the disability is manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. For those conditions explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a), the provisions of 38 C.F.R. § 3.303(b) provide an alternative method of establishing the second and third elements through a demonstration of continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Disorders diagnosed after discharge will still be service-connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Also, VA will pay compensation to a Persian Gulf veteran who exhibits objective indications of a qualifying chronic disability, including signs or symptoms involving the skin, provided that such disability became manifest either during active military, naval, or air service in the Southwest Asia theater of operations, or to a degree of 10 percent or more not later than December 31, 2016; and that, by history, physical examination, and laboratory tests, cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317. Evidentiary Standards VA must give due consideration to all pertinent lay and medical evidence in a case where a Veteran is seeking service connection. 38 U.S.C.A. § 1154(a). As the Veteran did not serve in combat, the combat provision of 38 U.S.C.A. § 1154(b) does not apply. Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact (i.e. admissible); 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) Competency is a question of fact, which is to be addressed by the Board. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (2007). When the evidence is admissible, the Board must then determine whether the evidence is credible. Credible evidence is that which is plausible or capable of being believed. See Caluza v. Brown, 7 Vet. App. 478, 511 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (the determination of credibility is a finding of fact to be made by the Board in the first instance). If the evidence is credible, the Board, as fact finder, must determine the probative value or weight of the admissible evidence, that is, whether the evidence tends to prove a material fact. Washington v. Nicholson, 19 Vet. App. 362, 369 (2005). If the evidence is not credible, it has no probative value. 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 Veteran. 38 U.S.C.A. § 5107(b). Facts The service personnel records show that the Veteran served on federalized active duty with the National Guard in Kuwait from January 2004 to December 2004 during the Persian Gulf War. The service treatment records do not document a right shoulder injury and there are no complaints of shoulder pain or symptoms in any of the records, including on the post-deployment assessment in December 2004 Additional service records include an Initial Medical Review-Annual Medical Certificate, dated in January 2006, in which the Veteran denied medical problems. After service, VA records show that Veteran gave a history of problems with his right shoulder beginning in October 2006 during an episode of physical training [with the National Guard]. He stated that while performing pushups experienced a loud "pop," and noted worsening pain and difficulty using his arm afterwards. In December 2006, an X-ray showed osteoarthrosis and no acute fracture or dislocation. The impression was osteoarthrosis In January 2007 an X-ray showed acromioclavicular arthropathy. An MRI subsequently showed a mass encompassing the proximal humerus. In February 2007, X-rays showed a suspicious lesion in the proximal right humerus and osteoarthritic changes about the glenohumeral and acromioclavicular joints. In April 2007, a CT scan showed a soft tissue mass within the proximal right humeral head causing permeative destruction of the cortex of the proximal right humerus. A bone scan in May 2007 was consistent with a tumor. A biopsy of the tumor showed a giant cell tumor. VA records thereafter refer to the tumor as benign. Private treatment records show the Veteran underwent surgery which included removal of the tumor, grafting of bone into the right shoulder, and repair of the right rotator cuff and adjoining structures in June 2007. In March 2009, the Veteran asserted that his right shoulder disability was directly related to an incident involving horse-play in December 2004. The Veteran stated that he was hit several times in shoulder and that within 24 to 48 hours he noticed his shoulder was bruised and stiff. He stated that he told his platoon sergeant about the incident, but did not seek medical attention. He stated that by May 2006 he had problems sleeping on his arm and by September 2006 the pain was increasing and his strength was decreasing. In a statement in June 2010, the Veteran's former squad leader stated that the Veteran told him that he, the Veteran, had been hit in the arm below the right shoulder on out-processing at Fort Leonard. In a statement in May 2012, the individual who struck the Veteran stated that the Veteran was injured during horseplay in December 2004. He stated that he did not know the extent of the Veteran's injury. On VA examination in November 2010, the VA examiner reviewed the Veteran's file. After a physical examination, the diagnosis was right shoulder arthroplasty. The VA examiner expressed the opinion that the current right shoulder osteoarthritis and subsequent arthroplasty were less likely as not caused by or a result of another service member hitting him on the shoulder. The VA examiner explained that the separation records were void of discussion of a shoulder injury and there was no record of treatment for the injury. The VA examiner also noted that there was a significant time lapse between the incident and the identification of pathology. The VA examiner further explained that a giant cell tumor can deteriorate bone and cause bone weakness and fractures, but the literature did not indicate that such a tumor resulted from a traumatic event. On VA examination in November 2012, another VA examiner reviewed the Veteran's file. Following a brief synopsis of the pertinent medical history and current clinical findings, the VA examiner stated that it was less likely than not that the giant cell tumor was present during the Veteran's period of active duty from December 2003 to January 2005. The VA examiner explained that an X-ray in December 2006 showed mild changes of osteoarthritis, but no acute fracture, dislocation, or any other pathology. The VA examiner further indicated that the rotator cuff repair, which was part of the surgery in June 2007, was related to the giant cell tumor. The VA examiner also expressed the opinion that the rotator cuff repair was related to the giant cell tumor, and it was less likely than not that the rotator cuff tear had onset between the Veteran's periods of active duty between September 1987 and April 1988, and between December 2003 and January 2005. The VA examiner stated that a MRI in January 2007 showed moderate impingement with supraspinatus and infraspinatus tendinopathy, but no definite rotator cuff tear. In August 2012, the Board remanded the claim to obtain the surgical report from June 2007 so that a VA examiner could review the report and offer a medical opinion on whether the Veteran's right arm pain in service following the horseplay incident, with continuity thereafter, was related to the tumor. In February 2013, following receipt of the surgical report, the VA examiner stated expressed the opinion that the rotator cuff repair performed in June 2007 was not the result of a rotator cuff tear, but was repaired after the rotator cuff muscles were cut to excise the giant cell tumor from the proximal humerus. Therefore, there was no change in his previous medical opinion. Analysis The Veteran seeks service connection for a right shoulder disability, which he asserts is related to service. As indicated, several legal theories operate in conjunction with 38 U.S.C.A. §§ 1110 and 1131 as implemented in 38 C.F.R. § 3.303 in this case. 38 C.F.R. § 3.303(a) (Affirmatively Showing Inception in Service) The Veteran does not argue that the right shoulder disability is related to an injury, disease, or event during the period of active duty for training from September 1987 to April 1988. For the period of active duty from December 2003 to January 2005, on the basis of the service treatment records alone, a right shoulder disability, a giant cell tumor of the right proximal humerus and osteoarthritis, was not affirmatively shown to have been present during a period of active service duty. And service connection under 38 U.S.C.A. § § 1110 and 1131 and 38 C.F.R. § 3.303(a) (affirmatively showing inception in service) is not warranted. 38 C.F.R. § 3.303(b) (Chronicity and Continuity) For the showing of a chronic disease in service there is required a combination of manifestations sufficient to identify the disease and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). A benign tumor is not listed as a chronic disease in 38 C.F.R. § 3.309(a), chronicity under 38 C.F.R. § 3.303(b) does not apply. Osteoarthritis, however, is listed as a chronic disease in 38 C.F.R. § 3.309(a), thus chronicity and continuity of symptomatology under 38 C.F.R. § 3.303(b) apply. As the service treatment record lacks the documentation of the combination of manifestations sufficient to identify osteoarthritis of the right shoulder and as there was insufficient observation to establish chronicity at the time, on the basis of a single event in December 2004, days before the Veteran was out-processed following his call to active duty, chronicity in service for osteoarthritis of the right shoulder is not supported by the evidence of record. As chronicity in service for osteoarthritis of the right shoulder is not supported by the evidence of record, service connection may still be established by continuity of symptomatology after service under 38 C.F.R. § 3.303(b). Establishing service connection based on continuity of symptoms requires evidence of a nexus between the current disability and the postservice symptoms. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007) (continuity of symptoms requires evidence of a nexus between the current disability and the postservice symptoms, which are identical to the symptoms that began in service.) While the osteoarthritis of the right shoulder was not affirmatively shown to be present on active duty and the evidence is insufficient to establish chronicity during service, the Veteran is competent to describe right shoulder symptoms in service and since service. 38 C.F.R. § 3.159 (Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience; lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person). See Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (Lay testimony is competent as to symptoms of an injury or illness, which are within the realm of one's personal knowledge; personal knowledge is that which comes to the witness through the use of the senses). To this extent, the Veteran's lay statements of right shoulder symptoms since active duty are competent evidence of postservice continuity of symptomatology. The Veteran asserts that osteoarthritis of the right shoulder is a continuation of the shoulder pain in service, resulting from horseplay with another soldier who hit him in the shoulder several times, which is an expression of a causal relationship between the current disability and continuity of symptoms. As the statement is an inference based on facts, it is an opinion rather than a statement of fact. The Veteran as a lay person is also competent to offer an opinion on a simple medical condition. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). And the Veteran as a lay person is competent to identify a simple medical condition, or describe a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The question then is whether the Veteran as a lay person is competent to offer an opinion on the causal relationship or nexus between the current osteoarthritis of the right and the postservice symptomatology. Osteoarthritis is not a condition under case law that has been found to be capable of lay observation and it is not a simple medical condition, because the disability cannot be identified or diagnosed by the Veteran as a lay person based on mere personal observation, that is, the disability cannot be perceived through the senses, for example, by visual observation, and therefore such a disability is not a simple medical condition. As the disability is not a condition that can be identified based on personal observation, either by case law or as a simple medical condition, and any inference based on what is not personally observable cannot be competent lay evidence. And no factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer an opinion on the causal relationship or nexus between the current osteoarthritis of the right shoulder and the continuity of symptoms that the Veteran avers. For this reason, the Veteran's lay opinion is not competent evidence of a causal relationship or nexus between the current osteoarthritis of the right shoulder and the postservice symptomatology. Since the Veteran's lay opinion is not competent evidence, the Veteran's opinion is excluded, that is, not admissible as evidence and cannot be considered as competent lay evidence favorable to claim based on continuity of symptomatology. 38 C.F.R. § 3.303(d) (Postservice Diagnosis) Although service connection for osteoarthritis of the right shoulder is not warranted either by chronicity or by continuity of symptomatology on the basis of lay evidence under 38 C.F.R. § 3.303(b), and as chronicity and continuity of symptomatology do not apply to a benign tumor of the humerus service connection still can be established based on an initial diagnosis after service under 38 C.F.R. § 3.303(d), when all of the evidence, including that pertinent to service, shows that the disability was incurred in service. As explained osteoarthritis is not a condition under case law that has been found to be capable of lay observation and the disability is not a simple medical condition, capable of lay observation, and the same analysis applies to a benign tumor. That is a tumor is not a condition under case law that has been found to be capable of lay observation and a tumor is not a simple medical condition, capable of lay observation. Therefore determination as to the presence or diagnosis of such a disability and relationship to an injury, disease, or event in service is medical in nature and competent medical evidence is needed to substantiate the claim. There is no competent evidence, lay or medical, that shows the Veteran's current right shoulder disability, including a giant cell tumor of the right proximal humerus and osteoarthritis, is directly related to an injury, disease, or event in service. As for the Veteran reporting a contemporaneous medical diagnosis, there is no diagnosis of a giant cell tumor of the right proximal humerus or osteoarthritis before December 2006. As for symptoms described by the Veteran that later support a diagnosis by a medical professional, no medical professional has attributed the current right shoulder disability, giant cell tumor of the right proximal humerus or osteoarthritis to an injury, disease, or event in service, including Veteran's corroborated report of a right shoulder injury, namely, the Veteran was hit on the shoulder several times in horseplay. And the Veteran has not submitted any medical evidence that associates the current right shoulder disability to an injury, disease, or an event in service. The only competent medical evidence of record pertaining to causation or a nexus to service consists of the reports of VA examinations in November 2010 and in November 2012 and addendum report in February 2013 addendum. The first VA examiner stated that the Veteran's current right shoulder osteoarthritis and subsequent arthroplasty was less likely as not caused by or a result of another service member hitting him on the shoulder. The second VA examiner expressed the opinion that it was less likely than not that the giant cell tumor was present during the Veteran's period of active duty from December 2003 to January 2005. In the addendum, the VA the examiner indicated that the rotator cuff repair performed in June 2007 was not the result of an actual rotator cuff tear, but was performed because the rotator cuff muscles were cut to excise the giant cell tumor from the proximal humerus. In other words, it is not related to an in-service injury. The medical opinions constitute competent and persuasive evidence with respect to the question of onset and etiology of the current right shoulder disability, which opposes rather than supports the claim. The opinions were offered by medical professionals, who reviewed the Veteran's file and supported the conclusions reached in the opinions with reasoned analysis. A medical opinion that is factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). There are no medical opinions to the contrary. The Veteran's unsupported lay statements are outweighed by the competent and more probative VA examiners' findings with respect to whether his right shoulder disability, a giant cell tumor of the proximal right humerus and osteoarthritis, is related to an injury, disease, or event in service. 38 C.F.R. §§3.307 and 3.309 (Presumptive Service Connection ) With respect to presumptive service connection for chronic diseases under 38 C.F.R. §§3.307 and 3.309, the competent medical evidence of record reflects that the Veteran's right shoulder giant cell tumor was benign. In addition, the first diagnosis of right shoulder arthritis in December 2006 was beyond the one-year presumptive periods after discharge from service in April 1988 and January 2005. For this reason, presumptive service connection for a tumor or arthritis, as chronic diseases under 38 C.F.R. §§3.307 and 3.309, is not warranted. 38 C.F.R. § 3.317 (Persian Gulf and Undiagnosed Illness) While the Veteran served in the Southwest Asia Theater of Operations during the Persian Gulf War, the current right shoulder disability, including a giant cell tumor of the proximal right humerus and osteoarthritis, are known clinical diagnoses. Therefore, presumptive service connection for a right shoulder disability as an undiagnosed illness under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 does not apply. As the preponderance of the evidence is against the claim for a right shoulder disability, a tumor of the humerus and osteoarthritis, there is no doubt to be resolved and service connection is not warranted. ORDER Service connection for a right shoulder disability, a tumor of the humerus and osteoarthritis, is denied. ____________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs