Citation Nr: 1321316 Decision Date: 07/02/13 Archive Date: 07/12/13 DOCKET NO. 06-15 137 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to service connection for left shoulder disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD M. Mills, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1966 to September 1968. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In that decision, the RO denied reopening the claim for service connection for a left shoulder disorder. The Board reopened the claim for service connection in March 2008 and remanded the merits of that claim for further evidentiary development. The record shows that, in accordance with the remand directives, the RO obtained additional treatment records and afforded the Veteran a VA examination. The case was subsequently remanded by the Board again in April 2013 for a clarifying medical opinion. That development was completed. That development was completed, and the case has since been returned to the Board. In October 2007, the Veteran presented testimony during a videoconference hearing before an acting Veterans Law Judge who has since retired. A transcript of that hearing is associated with the record. The Veteran was also advised in a January 2013 letter that the acting Veterans Law Judge who conducted his hearing was no longer available to consider his appeal, and he was offered the opportunity to testify at another hearing before a different Veterans Law Judge who would ultimately decide this appeal. The Veteran responded in February 2013 and indicated that he did not want a second hearing. See generally 38 U.S.C.A. § 7107(c) (West 2002); 38 C.F.R. § 20.707 (2012). Therefore, the Board finds that no further hearing is necessary. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the Veteran's appeal has been obtained. 2. A left shoulder disorder did not manifest in service or within one year thereafter and has not been shown to be related to the Veteran's military service. CONCLUSION OF LAW A left shoulder disorder was not incurred in active service, nor may arthritis be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1154 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and 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, the RO did provide the Veteran with notice in November 2004, prior to the initial decision on the claim in February 2005, as well as in March 2006. The RO informed the Veteran in the November 2004 notice letter about the information and evidence that is necessary to substantiate his claim for service connection. He was also advised about the division of responsibilities in obtaining such evidence. The March 2006 letter further explained how disability ratings and effective dates are determined. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records as well as all identified and available post-service medical records are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. The Veteran has not identified any outstanding records that are pertinent to his appeal. In addition, the Veteran was afforded VA examinations in October 1968, April 1983, February 2009, and an additional VA medical opinion was obtained in April 2013. 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 the most recent April 2013 VA opinion obtained in this case is adequate, as it is predicated on a full reading of the service treatment records as well as the post-service medical records contained in the Veteran's claims file. The examiner provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. In fact, the examiner specifically discussed the findings in service and post-service medical findings, and he discussed how an acromioclavicular (AC) separation generally presents or develops. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). With regard to the remand in April 2013, the RO/AMC substantially complied with the Board's April 2013 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance would be required, not strict compliance). Specifically, pursuant to the remand, the RO secured an adequate VA opinion in April 2013. Moreover, as previously noted, the Veteran testified at a hearing before an acting Veterans Law Judge in February 2012. The Veterans Law Judge clearly set forth the issue to be discussed. The hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony and questioning by his representative, demonstrated his actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that VA complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis 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, 1131. 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). 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). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic disabilities, to include arthritis, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). With 'chronic disease' shown as such in service (or within the presumptive period under § 3.307), 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). For the showing of a 'chronic disease' in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. The term 'chronic disease,' whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). In considering the evidence of record under the laws and regulations, the Board finds that the Veteran is not entitled to service connection for a left shoulder disorder. The Veteran's service treatment records show that he was diagnosed with a left acromioclavicular (AC) joint separation in September 1967 subsequent to a fall 10 days earlier. His service treatment records do show that he continued to report pain in the left shoulder; however, he did not report any left shoulder pain or residuals upon separation. In fact, a clinical evaluation of the upper extremities was normal during the August 1968 separation examination, and he specifically denied having a painful or trick shoulder. A review of the post-service medical evidence shows that the Veteran has complained of left shoulder pain as a result of an injury to his left shoulder during service. During an October 1968 VA examination, the Veteran reported sustaining a left shoulder injury and an AC separation. On examination, there was no evidence of an AC separation, but there was some tenderness to palpation in the left shoulder area. The Veteran exhibited a full range of motion of the shoulder and no osseous or joint pathology were seen on x-ray. The examiner diagnosed posttraumatic residuals of the left shoulder with a healed AC separation. A February 1983 VA treatment record indicates that the Veteran complained of left arm pain. He was subsequently afforded a VA examination for the back and shoulder in April 1983 during which he complained of vague left shoulder pain and numbness along the distribution of the left hand. The diagnosis was vague musculoskeletal left shoulder pain without a definite etiology. The examiner concluded that that Veteran had no appreciable disability on examination, but recommended medication and physical therapy for the left shoulder. A March 1992 treatment record notes that the Veteran complained of pain running down his left arm. The Veteran related the pain to his period of service. However, an (electromyography) EMG and x-ray of the left shoulder were normal. The examiner noted tenderness in the left biceps tendon and assessed him as having tendonitis or subacromial bursitis. The Veteran was referred to the orthopedic clinic. A December 2001 VA treatment record noted that the Veteran complained of left shoulder pain for years. The Veteran filed to reopen his previously denied claim in September 2004, indicating that he now had a diagnosis of arthritis. The Veteran continued to complain of left shoulder pain in VA treatment. A March 2005 VA treatment record noted a medical history of shoulder arthropathy. January 2006 VA treatment records note his continued complaints of left shoulder pain. Private treatment notes from K.M., M.D. (initials used to protect the Veteran's privacy), indicate the Veteran complained of bilateral shoulder pain in reference to an in-service shoulder injury. The Veteran reported that the pain had been getting progressively worse over the years. An x-ray of the shoulders showed a normal glenohumeral joint and arthrosis of both AC joints with the right greater than the left. Dr. K.M. diagnosed the Veteran with bilateral impingement and bilateral AC joint arthrosis. An October 2006 letter from a private physician notes the Veteran's long history of arthritic pain of his shoulder. The physician stated the Veteran had multiple injuries in the past, which cause him pain on use of his arms. The Veteran was afforded an additional VA examination in February 2009 during which he complained of continuous pain since an in-service injury. After a review of the claims folder and a June 2008 x-ray, the examiner noted a density adjacent to the left glenoid, which may represent a labral calcification versus loose body. There was no evidence of arthritic changes in the left shoulder. The examiner stated that, if direct trauma to the left shoulder forty years ago was still causing the Veteran problems today, then the Veteran would more likely than not have a rather impressive x-ray of the shoulder and more documented problems. The examiner opined that it is less likely than not that his current left shoulder problem is related to an in-service injury. VA subsequently obtained another medical opinion in April 2013. After reviewing the claims folder, the examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury. The examiner noted that an AC separation typically takes about one to two months to heal, which explains the Veteran's tenderness on follow-up examination and his absence of complaints at separation. He stated that such injuries generally heal with no deformity, which was verified by the Veteran's follow-up x-rays. He noted that the Veteran currently has bilateral AC arthropathy, and the first objective evidence of left shoulder arthritis was in 2008. Moreover, the examiner stated that the Veteran's in-service disorder was not chronic and resolved prior to discharge based on the evidence of record. The examiner noted that the Veteran had no subsequent complaints until 1983 and that those complaints were vague and involved both shoulders. He specifically noted that there was no x-ray evidence of progression of shoulder disease until 30 years after separation. Finally the examiner noted the Veteran's post-service occupation as a pipefitter, plumber, and construction worker, and how he developed AC arthropathy in his right shoulder in 1992. The examiner concluded that similar arthropathy developed in the Veteran's left shoulder due to similar circumstances. In May 2013, the Veteran's representative submitted an Internet article on how shoulder separations occur and the position of displaced bones. In this case the April 2013, examiner noted that x-ray evidence indicated that the Veteran's left shoulder healed with no deformity. Based on the foregoing evidence, the Board finds that Veteran's current left shoulder disorder did not manifest in service or for many years thereafter. As previously noted, the Veteran did have a documented shoulder injury in service. However, there were no shoulder abnormalities at that time of his August 1968 separation examination, and he even denied having a painful or trick shoulder at that time. Moreover, the April 2013 VA examiner noted that an AC separation generally heals with no deformity, which was verified by the Veteran's follow-up x-rays. The examiner stated that the Veteran's in-service disorder was not chronic and resolved prior to discharge based on the evidence of record. In so doing, he observed that the Veteran had no subsequent complaints until 1983 and that those complaints were vague and involved both shoulders. The Board notes that the Veteran has asserted that he has had a left shoulder disorder since service. The Veteran is competent to report his experience and symptoms in service and thereafter. While lay persons are generally not competent to offer evidence which requires medical knowledge, they may provide competent testimony as to visible symptoms and manifestations of a disorder. Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). A veteran can attest to factual matters of which he or had had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Federal Circuit has held that lay evidence is one type of evidence that must be considered, if submitted, when a Veteran seeks disability benefits, and competent lay evidence can be sufficient in and of itself for proving the existence of a chronic disease. See Buchanan, 451 F.3d at 1335; 38 C.F.R. §§ 3.303(a), 3.307(b). The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. Buchanan, 451 F.3d at 1336. Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")); see also Barr v. Nicholson, 21 Vet. App. 303 (2007). In this case, the Board finds that the Veteran is competent to state that he has had left shoulder problems since his military service. However, his allegations are inconsistent with the contemporaneous record. As previously discussed, the Veteran's upper extremities were documented as being within normal limits at the time of his separation from service. In fact, despite reporting other complaints, he specifically denied having a painful or trick shoulder during that examination. As such, there is actually affirmative evidence showing that he did not have a left disorder at the time of his separation from service. Moreover, the Veteran has made inconsistent statements regarding the onset of his left shoulder disorder. He has contended that his current left shoulder disorder was related to his injury in service. However, a VA treatment record dated in February 1992 noted that the Veteran reported only having had the left shoulder pain for several years, which suggests that the symptomatology had not been continuous since his military service. He also told a private physician that he had had multiple injuries in the past, as documented in an October 2006 letter. As such, the Veteran's own statements are inconsistent. Therefore, the Board finds that the Veteran's reported history regarding the onset of his left shoulder disorder to be not credible. The Board also finds that the Veteran did not develop compensable arthritis in his left shoulder within one year of his separation from service. In fact, the October 1968 VA examination included an x-ray, which did not reveal arthritis, and a March 1992 x-ray showed that the shoulder was normal. Thus, the affirmative evidence shows that he did not have left shoulder arthritis. Moreover, the Veteran admitted at the December 2007 hearing that he was not diagnosed with arthritis within one year of his separation from service. Therefore, service connection on a presumptive basis as a chronic disease is not warranted. In addition to the evidence showing that left shoulder disorder did not manifest during active duty service or within close proximity thereto, the evidence of record does not link any current diagnosis to the Veteran's military service. As discussed above, the Board finds that the Veteran's reported history regarding the onset of his current disorder to be not credible. There is evidence showing that he injured his left shoulder, but the medical evidence does not relate any current diagnosis to that injury. Significantly, the April 2013 VA examiner concluded that the current disorder was less likely than not incurred in service or caused by an injury therein. The examiner offered his opinion based on a thorough and detailed review of all the evidence, to include the Veteran's complete service treatment records and post-service treatment records, and he offered a rationale for the opinion reached that is clearly supported by the evidence of record. In fact, the examiner noted the findings of the Veteran's separation examination and specifically discussed how AC separations typically present. Moreover, he specifically addressed the Veteran's post-service work history and how similar arthropathy developed in both shoulders. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (noting that it is what an examiner learns from the claims file for use in forming the expert opinion that matters and that, when the Board uses facts obtained from one opinion over another, it is incumbent upon the Board to point out those facts and explain why they were necessary or important in forming the appropriate medical judgment). Furthermore, the April 2013 VA examiner stated that complaints for the left shoulder were not shown until 1983, which was approximately 15 years after the Veteran's discharge from service, and there was no x-ray evidence of progression of shoulder disease until 30 years later. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment of the claimed condition for many years after service). Finally, the April 2013 VA examiner commented on alternative causes for the Veteran's left shoulder disorder and specifically noting that he developed right shoulder arthropathy under similar circumstances subsequent to his years of manual labor as a pipefitter, plumber, and construction worker. In this case, the Board attaches the greatest probative weight to opinion of the April 2013 VA medical examiner who had the benefit and review of all pertinent medical records and who provided a rationale supported by the record. The Board further notes that there is no medical evidence otherwise relating the Veteran's current diagnosis to his military service. The Board does acknowledge that the Veteran's representative has submitted medical literature obtained from the Internet to support the claim. However, this evidence is general in nature, and no examiner has specifically related the information contained therein to the Veteran. See Sacks v. West, 11 Vet. App. 314, 317 (1998) ("This is not to say that medical article and treatise evidence are irrelevant or unimportant; they can provide important support when combined with an opinion of a medical professional."). Thus, the Board finds that the medical literature is of little probative value in this case. In light of the foregoing, the Board concludes that the Veteran's left shoulder disorder did not manifest in service or for many years thereafter and has not been shown to be related to the Veteran's military service. Therefore, the Board finds that the preponderance of evidence is against the Veteran's claim for service connection for a left shoulder disorder. Because the preponderance of the evidence is against the Veteran's claim, the benefit of the doubt provision does not apply. Accordingly, the Board concludes that service connection for left shoulder disorder is not warranted. ORDER Entitlement to service connection for a left shoulder disorder is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs