Citation Nr: 1320203 Decision Date: 06/21/13 Archive Date: 07/02/13 DOCKET NO. 05-02 582 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to service connection for a left shoulder disability. REPRESENTATION Appellant represented by: Arizona Department of Veterans Services WITNESSES AT HEARINGS ON APPEAL The Veteran and J. O. ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active service from June to November 1956 and from June 1957 to April 1958. This case comes before the Board of Veterans' Appeals (Board) from a February 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona, that in pertinent part denied service connection for a left shoulder condition. In December 2011, the Board remanded this and other issues for further development. In August 2012, VA's Appeals Management Center (hereinafter: AMC) issued a supplemental statement of the case (SSOC) that failed to discuss the left shoulder claim. In December 2012, the Board adjudicated all other issues on appeal, but remanded the left shoulder issue for issuance of an SSOC that discusses the left shoulder claim. The record before the Board consists of the Veteran's paper claims files and an electronic file known as Virtual VA. FINDINGS OF FACT 1. The Service Treatment Records (STRs) are largely missing and National Personnel Records Center (NPRC) indicated that these records might have been destroyed in a fire at NPRC. 2. VA has granted service connection for post-traumatic stress disorder (PTSD) based on a personal assault that occurred during active service. 3. A current left shoulder disability first arose many years after active service and is not the result of an injury in active service. CONCLUSION OF LAW A left shoulder disability was not incurred in active service, and arthritis of the left shoulder may not be presumed to have been caused by active service. 38 U.S.C.A. §§ 1112, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303. 3.307. 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has remanded the case for development. When the remand orders of the Board are not complied with, the Board itself errs in failing to ensure compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In this case, all remand orders have been complied with. VA must notify and assist claimants in substantiating claims for benefits. 38 U.S.C.A. § 5103A (West 2002); 38 U.S.C.A. §§ 5102, 5103 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA must notify the claimant and his representative of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must also inform the claimant of any information and evidence not of record that VA will seek to provide and that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, an initial notice letter was sent to the claimant in August 2004, prior to the unfavorable decision. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for service-connection, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, a letter that complies with these additional notice requirements was not issued until March 2006; however, such timing error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to the claimed condition. VA also has a duty to assist the claimant in the development of the claim. This duty includes assisting the claimant in obtaining service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. All necessary development has been accomplished and adjudication may proceed without unfair prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA has obtained VA and private medical records. The claimant was provided an opportunity to set forth his contentions during a hearing before the undersigned Veterans Law Judge and he was afforded a VA medical examination in December 2009. The examination report contains sufficient details and is adequate for rating purposes. 38 C.F.R. § 4.2; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Neither the claimant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for fair adjudication of the claim that has not been obtained or for which all reasonable effort to locate has not been exhausted. Hence, no further notice or assistance to the claimant is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). Service Connection Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. §§ 1110. Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability resulting from a disease or injury incurred in service, or to establish service connection based on aggravation in service of a disease or injury which pre-existed service, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of incurrence or aggravation of a disease or injury in active service; and (3) competent evidence of a nexus or connection between the current disability and the disease or injury incurred or aggravated in service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases, including arthritis, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). In such cases, the disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). The term "chronic disease" refers to those diseases listed under section 1101(3) of the statute and section 3.309(a) of VA regulations. 38 U.S.C.A. § 1101(3); 38 C.F.R. § 3.309(a); Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013). Where a chronic disease under 3.309(a) is "shown as such in service" ("meaning clearly diagnosed beyond legitimate question" (Walker, 708 F.3d at 1339), or in the presumptive period so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). In cases where a chronic disease is "shown as such in service", the Veteran is "relieved of the requirement to show a causal relationship between the condition in service and the condition for which service-connected disability compensation is sought." Walker, 708 F.3d at 1336. Instead, service connection may be granted for subsequent manifestations of the same chronic disease without any evidence of a link or connection between the chronic disease shown in service and manifestations of the same disease at a later time. In other words, "there is no 'nexus' requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease." Id. "If evidence of a chronic condition is noted during service or during the presumptive period, but the chronic condition is not 'shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned,' i.e., 'when the fact of chronicity in service is not adequately supported,' then a showing of continuity of symptomatology after discharge is required to support a claim for disability compensation for the chronic disease. Proven continuity of symptomatology establishes the link, or nexus, between the current disease and serves as the evidentiary tool to confirm the existence of the chronic disease while in service or a presumptive period during which existence in service is presumed." Id. See also 38 C.F.R. § 3.303(b). The primary difference between a chronic disease listed under section 3.309(a) which qualifies for analysis under 3.303(b) and other chronic diseases which must be tested under section 3.303(a) "is that the latter must satisfy the 'nexus' requirement of the three-element test [for service connection], whereas the former benefits from presumptive service connection (absent intercurrent causes) or service connection via continuity of symptomatology." Walker, 708 at 1338-39. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. In this case, the Veteran contends that a current left shoulder disability is the result of a left shoulder injury sustained in a physical assault during active service in 1958. The STRs are largely missing, and the NPRC indicated that these records might have been destroyed in a fire at NPRC. However, even though no STR is available to document specific injuries, satisfactory witness evidence that an assault on the Veteran actually took place has been received and VA granted service connection for PTSD based on corroborating evidence of that assault. The current left shoulder diagnoses and assessments include adhesive capsulitis, rotator cuff syndrome, impingement syndrome, acromioclavicular joint arthritis, tendinosis, and degenerative joint disease. Although arthritis, or degenerative joint disease of the left shoulder is shown to exist today, there is not a diagnosis of arthritis shown in service given that there are no STRs, and arthritis is not the kind of disorder that is capable of lay observation because it is a complicated disease, requiring clinical evaluation of the joints by trained medical professionals who are many times assisted by specific medical testing instruments such as x-rays or MRIs. Because there is no clear diagnosis of arthritis in service or even a diagnosis in service that may be legitimately questioned, this is not a case where the link or nexus between an injury to the left shoulder, if any, in service, "benefits from presumptive service connection (absent intercurrent injury) or service connection via continuity of symptomatology." Walker, 708 F.3d at 1339-40. Moreover, the Veteran has not alleged a diagnosis of arthritis was rendered in service but rather he contends that his arthritis and other left shoulder diagnoses today are the result of an injury to his left shoulder in service. In either case, the claim for service connection requires a link or nexus between the in-service left shoulder injury, if any, and a current left shoulder disability. 38 C.F.R. § 3.303(a). Before moving on to evidence pertaining to the nexus or connection, however, the Board notes that the lay evidence as to an injury to the left shoulder in service is competent, but for the reasons which follow, the Board finds that the lay evidence is not credible regarding the occurrence of the injury to the left shoulder in service in the 1950s which resulted in continuing disability over the years. Concerning this, the Veteran's statements pertaining to the injury and continuing disability have been inconsistent. For example, in October 1968, the Veteran attempted to re-enlist in service and wrote a letter to a Marine Corps recruiter describing himself as "strong, healthy, and able." This letter controverts his later allegation of continuity left shoulder symptoms from an injury in service in the 1950s. In October 1976, the Veteran submitted an original claim for benefits, claiming service connection for a right arm injury only. He did not mention any shoulder disorder. Although he claimed that an arm injury occurred in 1958 on an Air Force Base, medical records supplied to the RO in 1976 reflect that the right elbow area was injured in a prison riot in 1975 and that the Veteran had undergone some orthopedic surgery for that injury in June 1976. The October 1976 VA service connection claim was denied in May 1977. In June 2003, the Veteran applied to reopen the right arm claim, but again made no mention of a left shoulder disorder. Complaints relevant to the left shoulder arose in 2004. A March 2004 VA treatment note reflects that the Veteran complained of pain over both shoulders, but much worse in the right shoulder. The impressions were, "Multifactorial neck and right arm pain with elements of...rotator cuff syndromes..." In April 2004, the Veteran requested service connection for both shoulders. He reported that a 1992 magnetic resonance imaging study (MRI) in Glendale, Arizona, showed a shoulder disorder. This MRI report was not located. An August 2005 VA out-patient treatment report reflects bilateral shoulder pains that had reportedly been present since the 1950s; however, as discussed below, this claim of bilateral shoulder pains dating back to the 1950s is controverted by the Veteran's testimony. The Veteran's testimony controverts his allegations that a left shoulder disorder arose during active service. In January 2007, he testified before an RO hearing officer that he was injured in a personal assault during active service, but that his shoulder disorders arose much later. He stated, "Well, my shoulders did not start bothering me right away. It's a long time for my shoulders to come into play the way they are today." He testified that recent X-rays showed traumatic bone injury. He also testified that he has tried all avenues to obtain any relevant treatment reports from 1958, to no avail. In June 2009, the Veteran testified before the undersigned Veterans Law Judge that he was injured in the arm, hand, side, groin, and head in a personal assault during active service, but he did not allege any shoulder injury. He testified that his doctor told him that he had osteoarthritis which takes years to develop. The Veteran underwent a VA orthopedic examination in December 2009. He reported his history of injury to several areas of his body in 1958, but he did not mention either shoulder. The examination report notes that in 2005, VA had found bilateral impingement syndrome and bilateral acromioclavicular joint arthritis. The current examiner assessed bilateral shoulder degenerative joint disease with tendinosis and bilateral shoulder adhesive capsulitis. The examiner opined that the left shoulder disability was not caused by an in-service physical assault. The examiner's rationale was that there was no evidence of any shoulder disability for 10-years following the alleged in-service assault. Although the examiner conceded that a personal assault had occurred (as eye-witnesses to the Veteran's subsequent hospitalization had come forward), the examiner concluded that there was no evidence of a physical condition as a result of that assault. The examiner emphasized that in 1968 the Veteran himself had indicated that there was nothing physically or mentally wrong with him, and that he was in excellent health. The examiner also emphasized that there was no evidence of a bilateral shoulder disorder when the Veteran was first seen by VA in 2003. In August 2011, B. Stamper, D. O., opined that the current shoulder disorder is possibly related to a 1958 injury during active service. In September 2011, E. McEleney, M.D., opined that the Veteran has post-traumatic arthritis and, "It appears that the traumatic arthritis he suffers from is related to previous injuries which have been documented while in the armed services." These physicians provided no rationale for their opinions. Because the medical opinions conflict, the evidence concerning the origin of any current left shoulder disorder is in controversy. On one hand, two private physicians have suggested a possible in-service etiology. On the other hand, a VA compensation examiner has rendered the opinion that any current left shoulder disorder is unrelated to an injury, if any, in active service. The December 2009 VA medical opinion is persuasive, while the two more recent private medical opinions are not. The two private opinions are based on a purported in-service left shoulder injury, and, as such, are inaccurate. The facts do not support the contention that there was a left shoulder injury during active service. The facts show that in 1968, the Veteran denied any health problem. The earliest service connection claim, submitted in 1976, does not mention a left shoulder injury during active service. The first documented mention of shoulder pain is dated in 2003, some 45 years after active service. In 2007, the Veteran testified to the effect that his shoulder problems did not arise during active service but, in fact, arose much later after active service. Thus, the physicians who relate the current left shoulder disability to an injury during active service have based the relationship on history provided by the Veteran which the Board does not find to be persuasive. Thud, these opinions are afforded less probative weight in the matter than the opinion of the VA examiner. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (medical opinion based upon an inaccurate factual premise has no probative value). With regard to the credibility of the lay evidence, the Board notes that credible testimony is that which is plausible or capable of being believed. See Indiana Metal Prods. v. NLRB, 442 F.2d 46, 52 (7th Cir. 1971) (citing Lester v. State, 370 S.W.2d 405, 408 (1963)); see also Weliska's Case, 131 A. 860, 862 (Me. 1926); Erdmann v. Erdmann, 261 P.2d 367, 369 (Mont. 1953) ("A credible witness is one whose statements are within reason and believable . . . ."). The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character. See State v. Asbury, 415 S.E.2d 891, 895 (W. Va. 1992); see also Burns v. HHS, 3 F.3d 415, 417 (Fed. Cir. 1993) (testimony was impeached by witness' "inconsistent affidavits" and "expressed recognition of the difficulties of remembering specific dates of events that happened . . . long ago"); Mings v. Department of Justice, 813 F.2d 384, 389 (Fed. Cir. 1987) (impeachment by testimony which was inconsistent with prior written statements). Although credibility is often defined as determined by the demeanor of a witness, a document may also be credible evidence. See, e.g., Fasolino Foods v. Banca Nazionale Del Lavoro, 761 F. Supp. 1010, 1014 (S.D.N.Y. 1991); In Re National Student Marketing Litigation, 598 F. Supp. 575, 579 (D.D.C. 1984). Caluza v. Brown, 7 Vet. App. 498, 511 (1995). [D]efinitions of credibility do not necessarily confine that concept to the narrow peg of truthfulness. It has been termed as "the quality or power of inspiring belief." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY (1966). "Credibility involves more than demeanor. It apprehends the over-all evaluation of testimony in the light of its rationality or internal consistency and the manner in which it hangs together with other evidence." Carbo v. United States, 314 F.2d 718, 749 (9th Cir. 1963). Indiana Metal Prods. v. NLRB, 442 F.2d 46, 51-52 (7th Cir. 1971) In this case, the Board had found that the lay evidence in this case of the occurrence of a left shoulder injury in service does not inspire belief because of inconsistent statements over the years about that injury. The lay testimony is competent with respect to observance of symptoms readily observable, but the Board finds it not credible, as the Veteran testified that any left shoulder disorder arose many years later, but also reportedly told his private physicians that the left shoulder disorder arose during active service. Because his recitation of historical facts has varied, the Board finds his statements that a left shoulder injury occurred in service unpersuasive and assigns those statements no probative weight. After considering all the evidence of record, including the testimony, the Board finds that the preponderance of it is against the claim. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2002); Gilbert, supra. The claim for service connection for a left shoulder disability is therefore denied. ORDER Service connection for a left shoulder disability is denied. ____________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs