Citation Nr: 1320678 Decision Date: 06/26/13 Archive Date: 07/05/13 DOCKET NO. 10-11 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to service connection for right acromioclavicular degenerative joint disease (hereinafter "right shoulder DJD"). 2. Entitlement to a compensable rating for scars of the left knee. REPRESENTATION Appellant represented by: Nebraska Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. I. Velez, Counsel INTRODUCTION The Veteran served on active duty from August 1956 to August 1958. These matters come before the Board of Veterans' Appeals (Board) on appeal from July 2009 and August 2009 rating decisions of the Department of Veterans Affairs (VA) regional office (RO) located in Lincoln, Nebraska. In August 2011, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in Lincoln, Nebraska. A transcript of the proceeding has been associated with the claims file. In September 2012, the Board remanded the claim for further development. The requested development has been substantially complied with and the claim is ready for appellate review. The Board has reviewed the Veteran's Virtual VA file and finds that there are no additional records contained therein not already in the paper claim file that are relevant to the present claim. The issue of entitlement to a compensable rating for scars on the left knee is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Right shoulder DJD was not demonstrated to a compensable degree within one year of discharge from active duty, and the most probative medical evidence of record does not show right shoulder DJD to be etiologically related to, or aggravated by, either a disease, injury, or event in service. CONCLUSION OF LAW Right shoulder DJD was not incurred in or aggravated by active military service and may not be presumed to have been incurred in service. See 38 U.S.C.A. §§ 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, and 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. A February 2009 VCAA letter fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187 . The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. This letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, this letter described how appropriate disability ratings and effective dates were assigned. The Board notes that in June 2005, relating to another claim, the RO requested copies of the Veteran's service treatment records from NPRC relating to his active service in the Army from 1956 to 1958. In July 2005, NPRC replied that the Veteran's service treatment records were fire-related. In September 2005, the RO requested that the Veteran submit a Form 13055, which the Veteran completed and returned to the RO. The Veteran also submitted a copy of his July 1958 separation examination report, which was negative for any right shoulder complaints. In October 2005, the RO prepared a formal finding of the unavailability of the Veteran's service treatment records. The Board also notes that in January 2009, relating to another claim, the RO requested copies of certain inpatient service treatment records from NPRC, and NPRC replied in May 2009 that all of the Veteran's inpatient treatment records (if any) would also be fire-related. In October 2012, pursuant to the Board remand of September 2012, the RO requested that service treatment records from the Veteran's service in the National Guard. However, these records could not be located. The Veteran was informed of their unavailability in a letter of October 2012 and was given the opportunity to submit any records in his possession. A formal finding of unavailability was issued in January 2013. The Veteran has not submitted any records and there is no indication that an additional remand would not be fruitful in obtaining outstanding records. The Court has held that in cases where records once in the hands of the government are lost, the Board has a heightened obligation to explain its findings and conclusions and to consider carefully the benefit-of-the-doubt rule where applicable. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The following analysis has been undertaken with this heightened duty in mind. The case law does not, however, lower the legal standard for proving a claim for service connection but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). Therefore, the Board finds that the VA has satisfied its duties to notify and to assist the claimant in this case. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). The Veteran was provided VA examinations for this claim August 2009. After reviewing the record, examining the Veteran, and noting his history, the examiner provided an etiological opinion regarding the claimed disability. The Board finds that the VA examination is adequate and sufficient upon which to base a decision with regard to this claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As noted above, the Veteran was afforded hearings before a RO hearing office and the under Veterans Law Judge. At these hearings, the Veteran and his representative related in great detail why they believed he was entitled to service connection. It is also clear from the lay statements provided by the Veteran and the argument presented by his representative that they understood the type of evidence that would be most helpful to his claim on appeal. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Based on the communications to the Veteran and the arguments raised by the Veteran and his representative, they have demonstrated actual knowledge of the requirements for substantiating the claim and it is reasonable to expect that the Veteran understands what is needed to prevail. Thus, the Board finds that no prejudice results in proceeding with adjudication of the Veteran's claims. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) , nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) . As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Legal Criteria The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. § 1110 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain diseases, to include arthritis, may be presumed to have been incurred in service when manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). III. Analysis The Veteran has alleged that he injured his right shoulder as a result of parachute jumps in service. The Veteran's discharge certificate verifies that the Veteran performed parachute jumps in service. In August 2009, the Veteran was afforded a VA examination. At the time, he reported that in 1957 while in service, he injured his right shoulder during a parachute jump either by hitting the ground or while coming out of a plane. He stated he could not remember if he was treated. He denied seeking treatment over that year or any current treatment. He denied any daily pain and reported pain only with repetitive throws. X-rays of both shoulders showed mild bilateral AC DJD. The examiner provided an opinion stating that it is less likely than not that the right shoulder condition is due to any event in service. She noted that there is no documentation of an injury to the right shoulder in service and the separation physical of July 1958 was negative for any right shoulder issues. Furthermore, the examiner noted that there was no medical care over the years regarding the right shoulder and that the Veteran has only established care starting in February 2006 and has not mentioned his shoulder. She noted that at the prior VA examination of October 2005 the Veteran did not mention any issues with his right shoulder. There was full range of motion on the right shoulder and the Veteran had no true disability. The x-rays showed mild bilateral AC joint DJD. The examiner observed that if the Veteran had had an injury of the right shoulder in service, he would show increased DJD in his right shoulder form service over 50 years ago and this is not the case. She noted there is equal DJD on both shoulders and therefore, the DJD is more likely due to the aging process than any event in service. At the August 2011 Board hearing, the Veteran testified that during his active service he performed 20 to 25 parachuting jumps at Ft. Bragg in North Carolina when he was assigned to the 82nd Airborne Division. He testified that on one occasion, he hit his right shoulder on the plane or the ground (he could not recall which) and hard rolled onto it when he landed rather than landing on the balls of his feet. See Transcript at 3-4, 9. The Board acknowledges that the Veteran's DD Form 214 reflects that he is the recipient of a parachutist badge. The Veteran testified that he has experienced continued symptoms of pain since service. See Transcript at 10, 15-16. With regard to establishing service connection on a presumptive basis under 38 U.S.C.A. § 1112, the Board notes that there is no competent evidence of record indicating that the Veteran had a diagnosis of arthritis of the right shoulder to a compensable degree within one year of discharge from active duty. In this regard, there is no radiographic or medical evidence of arthritis within one year of the Veteran's separation from active duty. Therefore, service connection for arthritis of the right shoulder cannot be granted on a presumptive basis under 38 U.S.C.A. § 1112. With regard to establishing service connection on a direct basis, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2012). Upon review of the claims file, the Board finds that the August 2009 VA opinion is the only and most probative medical opinion of record on this matter. The examiner reviewed the claims file, offered definitive opinions with regard to this claim, and provided detailed rationales for these opinions. Therefore, as the most probative medical opinion of record determined that it is less likely than not (less than 50 percent probability) that the Veteran's right shoulder disability (including degenerative joint disease) is directly related to his active military service (including his alleged parachuting accident), the Board finds that service connection cannot be granted on a direct basis. The Board notes that while the claimed injury to the right shoulder in service has not been confirmed, the examiner considered the reported injury in rendering the opinion. Moreover, she explained what would be expected if there had been an injury in service. She further compared both shoulders and their current condition when rendering the opinion. In sum, she considered the claimed injury and found that the current condition of the right shoulder does not support an injury in service. The Board acknowledges the Veteran's contentions that he has a current a right shoulder disability as a result of his active duty, specifically an injury to the right shoulder while parachuting. However, the most probative medical evidence of record does not support this contention. The Veteran can attest to factual matters of which he had first- hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran as a lay person has not been shown to be capable of making medical conclusions. See Layno v. Brown, 6 Vet. App. 465, 469- 470 (1994). While the Veteran is competent to report what comes to him through his senses, he does not have medical expertise. Id. Therefore, while the Board has considered the Veteran's lay assertions, the Board ultimately places more probative value on the August 2009 VA opinion with regard to this matter. To the extent that the Veteran may now be contending that a right shoulder disability has existed since service, the Board finds that any statements regarding a continuity of symptoms since service are not credible. In this regard, the Veteran himself stated at the August 2009 VA examination that he had not sought treatment for his right shoulder and there is no evidence of a treatment for a right shoulder disability for more than 50 years after service. While the Veteran testified at the August 2011 hearing that he has had problems with his right shoulder since service, the evidence of record contains no such treatment records, and the Veteran actually denied being treated for his shoulder or having right shoulder problems since service at the August 2009 VA examination. The Board notes the multi-year gap between discharge from active duty service and the Veteran's initial reported symptoms related to his right shoulder. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that a lengthy period of absence of medical complaints for a condition can be considered as a factor in resolving claim). All of these factors weigh against a finding of continuity of symptomatology since service. In summary, for the reasons stated above, the Board finds that the preponderance of the evidence is against the claim for service connection for a right shoulder DJD, and the benefit-of-the-doubt rule is not for application. ORDER Service connection for right shoulder DJD is denied. REMAND The veteran seeks a compensable rating for scars on his left knee. After a careful review of the evidence of record, the Board finds that additional development is needed prior to deciding the claim. A January 2009 VA examination notes three post surgical scars on the left knee which measuring .5 centimeters (cm) by .5 cm. There was no tenderness; the scars were normal in color and texture, and were superficial. A February 2010 VA examination addendum notes one scar in the later aspect of the left knee which is crescent shaped. The scar is well healed with no keloid formation and is nontender. There is no skin breakdown and the Veteran denied any pain. Physical examination revealed the scar measured 0.25 cm by 9 cm. The area is less than 6 square inches (39 square cm). The scar is not painful; there are no signs of skin breakdown; the scar is deep; there is no inflammation, no edema and no keloid formation; and, there are no additional disabling effects. At the August 2011 Board hearing the Veteran testified he had three scars on his left knee. He testified one is almost three inches long; another is about two inches long and a third is about an inch and a half. He testified they are sensitive but not painful. Considering the above, the Board finds that a VA examination of the scars is needed to properly asses the current level of disability of the scars of the left knee. Indeed, the January 2009 VA examination noted three scars all measuring .5 cm by .5 cm. The February 2010 addendum reported only on one scar and noted it was .25 cm by 9 cm. At the hearing the Veteran testified he had three scars of lengths in the inches. Considering the inconsistency of the evidence and the fact that the February 2010 VA examination addendum only addressed one of the three scars, the Board finds that a new examination is needed to properly assess the level of severity of the scars on the left knee. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should schedule an appropriate VA examination to ascertain the level of severity of the left knee scars. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner, and any indicated studies should be performed. The examiner should identify all of the scars symptoms to include their width and length, and shape. Colored photographs of the scars should be taken and associated with the claims folder. 2. Then, the RO/AMC should readjudicate the issue on appeal. If any benefit sought on appeal is not granted to the Veteran's satisfaction, the RO/AMC should furnish to the Veteran and his representative a supplemental statement of the case and afford them the requisite opportunity to respond. Thereafter, if indicated, the case should be returned to the Board for further appellate action. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs