Citation Nr: 1322237 Decision Date: 07/11/13 Archive Date: 07/18/13 DOCKET NO. 09-38 828 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a left shoulder disability. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Barone, Counsel INTRODUCTION The Veteran had active service from August 1966 to April 1969, to include service in Vietnam. He had subsequent service in the National Guard and Reserves. From December 1990 to April 1991, the Veteran was called to active duty in Southwest Asia in support of Operation Desert Shield and Desert Storm. This matter comes before the Board of Veterans' Appeals (Board) from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which, in pertinent part, denied service connection for the claimed shoulder disabilities. Service connection for a heart disorder was also denied. The Veteran testified before the undersigned Acting Veterans Law Judge at the RO in August 2010. In January 2011, the Board denied the Veteran's claims. He appealed to the U.S. Court of Appeals for Veterans Claims (Court). In October 2011, the Court granted the parties' joint motion for remand and returned the matter to the Board for compliance with the instructions in the joint motion. The appeal was subsequently remanded to the agency of original jurisdiction (AOJ). While the appeal was in remand status, the AOJ granted service connection for the claimed heart disorder. As this represents a full grant of the benefit sought, this issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). Furthermore, the Veteran has not expressed disagreement with either the disability evaluation or effective date assigned. See 38 U.S.C.A. § 7105 (c) (West 2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). The remaining issues have been returned to the Board for appellate consideration. FINDINGS OF FACT 1. The right and left shoulder disabilities preexisted service. 2. The right and left shoulder disabilities were not permanently aggravated by service. CONCLUSIONS OF LAW 1. A right shoulder disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 1137, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.304, 3.306 (2012). 2. A left shoulder disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1111, 1112, 1113, 1137, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.159, 3.303, 3.304, 3.306 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to 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) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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. VCAA notice should be provided to a claimant before the initial unfavorable RO decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the Court issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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. The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 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 the elements of the claim as reasonably contemplated by the application. Id. at 486. An August 2007 letter discussed the evidence necessary to support the Veteran's claims. He was invited to submit or identify pertinent evidence. The evidence of record was listed and the Veteran was told how VA would assist him in obtaining additional relevant evidence. This letter also advised the Veteran of the manner in which VA determines disability ratings and effective dates. Subsequent letters advised the Veteran of the status of his claims. The Board finds that the content of the notice fully complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran has been provided with every opportunity to submit evidence and argument in support of his claims and to respond to VA notices. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims. With respect VA's duty to assist, the Board notes that VA and private treatment records have been associated with the claims file. The file also includes service treatment records. The Veteran has also been afforded a VA examination, and the Board finds that the examination report provides an adequate basis on which to decide these claims. The Board notes that the examiner reviewed the record, interviewed the Veteran, and performed an appropriate examination prior to providing his conclusions. The report of record is thorough and consistent with contemporaneous treatment records, and provides the information necessary to decide the claims. The Board acknowledges the examiner's statement that he did not have access to the records contained in the Virtual VA e-file; however, the Board's review of these records indicates that they reference current shoulder complaints but not the etiology of the disabilities. As the disposition of this appeal does not turn on the presence of a current disability, the Board concludes that the examiner's failure to review this duplicative evidence is harmless. Neither the Veteran nor his representative has identified any additional evidence that might support the claim, and the Board is also unaware of any such evidence. As such, the Board finds that VA has properly carried out its duty to assist in this case. For the foregoing reasons, it is not prejudicial to the Veteran for the Board to proceed to a final decision in this appeal. Analysis As an initial matter, the Board notes that the Veteran is not shown to have participated in combat with the enemy. Therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. Entitlement to VA compensation may be granted for disability resulting from disease or injury incurred in or aggravated by active duty. 38 U.S.C.A. § 1110 (wartime service); 38 C.F.R. § 3.303. 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). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). For the showing of 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. Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A Veteran will be considered to have been in sound condition when examined, accepted, and enrolled for active service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The defect, infirmity, or disorder must be detected and noted at entrance examination by a person who is qualified through education, training, or experience to offer medical diagnosis, statement or opinions. See 38 C.F.R. § 3.304(b); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). A pre-existing injury or disease will be considered to have been aggravated by active military, naval or air service, where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups during service of a pre-existing injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. See Crowe v. Brown, 7 Vet. App. 238, 247-48 (1994); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). Clear and unmistakable evidence (obvious and manifest) is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). In Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Lay evidence is competent to establish observable symptomatology; however, VA may make credibility determinations as to whether the evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007), the Federal Circuit held that whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102. Service treatment records for the Veteran's first period of service reflect that on pre-induction examination in May 1966, the Veteran endorsed painful or trick shoulder. He specified that his right shoulder popped, and that he had not received medical treatment. Clinical examination revealed mild crepitus bilaterally. The examiner indicated that it was probably of no significance, and that the Veteran had never required medical attention. On separation examination in February 1969, the Veteran denied painful or trick shoulder. His upper extremities were noted to be clinically normal, and he was deemed qualified for separation. On examination for the individual ready reserve in October 1987, the Veteran denied painful or trick shoulder. He also denied ever having been a patient in any type of hospital. His upper extremities were normal on examination, and he was found to be qualified for the individual ready reserve. In January 1990, the Veteran certified that to the best of his knowledge and belief, his physical condition was substantially the same as when he was last physically examined by the Navy. On preenlistment periodic examination in February 1990, the Veteran denied painful or trick shoulder. He indicated that he had been hospitalized overnight in Kansas during July 1972 for a separated shoulder. The examining physician noted the Veteran's report that he had experienced no problems since that time. Clinical examination revealed full range of motion of the right shoulder with no instability, deformity, or effusion. The Veteran was deemed to be qualified for enlistment. In September 1990 the Veteran certified that to the best of his knowledge there had been no material change in his health since his last physical exam. A medical provider indicated that the Veteran was physically qualified for 17 days of active duty for training (ACDUTRA). In October 1990, the Veteran certified that he had received no illness or injury during ACDUTRA. On annual examination in December 1990, the Veteran denied painful or trick shoulder. He again identified the 1972 separated shoulder for which he was hospitalized. Clinically, the Veteran's upper extremities were normal. At that time, the Veteran certified that to the best of his knowledge there had been no material change in his health since his last physical exam. A medical provider indicated that the Veteran was physically qualified for 90 days of mobilization. In January 1991, the Veteran indicated that he was not currently ill with anything more severe than a cold. Private records from Smith-Glynn-Callaway Clinic for the period from June 1991 to December 1992 are negative for any diagnosis, complaint, or abnormal finding pertaining to the Veteran's shoulders. In May 1993, the Veteran completed an annual certificate of physical condition. He indicated that his last physical examination had been in December 1990. He denied having had an injury, illness, or disease within the previous 12 months which required hospitalization or caused him to be absent from school, duty, or his civilian occupation for more than three consecutive days. He denied having any physical defect that might restrict his performance on active duty or prevent mobilization. A June 2001 VA treatment record indicates that the Veteran saw a private physician on a regular basis, every six months to one year for his general medical problems. The Veteran reported medical problems, past and present. They included no reference to his shoulders. VA records dated in January 2002, March 2004, and December 2005 do not include reference to the Veteran's shoulders in the active problem lists. A treatment record produced by K.A.B., M.D., and dated in November 2001, indicates a history of right shoulder dislocation. Records from N.J.M., M.D. indicate complaints of problems with the Veteran's shoulders in May and November 2009. During his August 2010 hearing, the Veteran testified that he had not been treated for shoulder complaints during service. He noted that he began to have problems with his shoulders in approximately 2000. He related his belief that the arthritis in his shoulders was due to activities in service. The Veteran submitted to a VA examination in August 2012. The examiner reviewed the Veteran's history, reciting a detailed analysis of his service treatment records. Following examination, the diagnosis was bilateral shoulder degenerative joint disease. He noted the Veteran's report of symptoms since the 1970s. He opined that it was less likely as not that the Veteran's shoulder disability was proximally due to or the result of an injury or disease incurred in or aggravated by service. He reasoned that the Veteran had a clearly documented bilateral shoulder condition on entrance examination in 1966, when he endorsed a shoulder condition and crepitus was found during physical examination. He noted that there was no evidence of any treatment of a shoulder condition during the Veteran's first duty period, and that he denied a shoulder condition on separation. He also noted that the Veteran himself reported during examination that he had no problems with his shoulder during his first period of active service. He concluded that such would indicate no causation or aggravation during that service period. He indicated that there was clear evidence that the Veteran had a significant shoulder injury between his periods of active service. He determined that there was no evidence of aggravation of the preexisting shoulder condition during the second period of service during Desert Storm. The examiner acknowledged the Veteran's competent and credible reports regarding the onset of and continuity of symptoms; however, he again pointed to medical records establishing the onset of the bilateral shoulder condition prior to the Veteran's first period of service. He indicated that there were no medical records showing treatment of a shoulder condition during the second period of service, suggesting that any shoulder symptoms reported during this second period of service were minor and not severe. He pointed to the Veteran's denial of treatment for any shoulder complaints between 1991 and 2004, and concluded that had there been significant aggravation of a preexisting shoulder condition during active duty, severe enough to cause the present arthritis, it would not have taken 13 years after the second period of service for the condition to require a visit to a medical provider. Having reviewed the record, the Board has determined that service connection is not warranted. As indicated, the Veteran's reported a history of a right shoulder injury during his 1966 pre-induction examination. Mild bilateral crepitus was noted by the examining physician. The Board acknowledges that the enlistment examiner further indicated that the noted crepitus was probably of no significance and that the Veteran was qualified for service. The Board finds that even though the Veteran was found to be qualified for enlistment, the existence of a bilateral shoulder condition was still "noted" upon enlistment examination, and therefore, the presumption soundness does not apply. See 38 U.S.C.A. §§ 1111, 1137. In deciding a claim based on aggravation, after having determined the presence of a preexisting condition, the Board must first determine whether there was any measured worsening of the disability during service, and then whether this constitutes an increase in disability. See Browder v. Brown, 5 Vet. App. 268, 271 (1993); Hensley v. Brown, 5 Vet. App. 155, 163 (1993). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 C.F.R. § 3.306(a). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered "aggravation in service" unless the underlying condition, as contrasted to symptoms, is worsened. See Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). The presumption of aggravation is applicable only if the pre-service disability underwent an increase in severity during service. Id. at 296; see also Beverly v. Brown, 9 Vet. App. 402, 405 (1996). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service. 38 C.F.R. § 3.306(b). The Board finds that the evidence is insufficient to show that the bilateral shoulder disability underwent an increase during service. Service treatment records subsequent to the 1966 pre-induction examination are entirely negative for any diagnosis, complaint, or abnormal finding pertaining to the Veteran's bilateral shoulders. In fact, the Veteran specifically denied shoulder problems and repeatedly certified that his medical condition had not changed. As for the post-service medical evidence, it consists of VA and non-VA reports indicating that the earliest post-service medical evidence referencing the Veteran's shoulders dates to November 2001, when the Veteran reported a history of right shoulder dislocation to a private provider. No current findings were noted at that time. Finally, the Board observes that the August 2012 VA examiner determined that the claimed shoulder disability preexisted service and was not aggravated by service. In essence, he provided a reasoned opinion, based on complete review of the record, and interview and evaluation of the Veteran. In assigning high probative value to this opinion, the Board notes that the examiner had the claims file for review, specifically discussed evidence contained in the claims file, obtained a history from the Veteran, and conducted a complete examination. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Furthermore, the opinion was obtained from a licensed medical professional rather than a lay person. The Board thus finds the VA examiner's opinions to be of greater probative value than the Veteran's unsupported statements. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (noting that factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion.); Neives-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that the Veteran has submitted no competent nexus evidence contrary to the VA opinion. The Veteran has been accorded ample opportunity to furnish medical and other evidence in support of his claims; he has not done so. See 38 U.S.C.A. § 5107(a) (noting it is a claimant's responsibility to support a claim for VA benefits). Indeed, there is no competent evidence of record showing that the Veteran's pre-existing disabilities were aggravated by his military service. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Duenas v. Principi, 18 Vet. App. 512, 520 (2004). Lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). However, in this case, assertions as to whether the Veteran's preexisting shoulder disabilities were aggravated by service are etiological questions unlike testimony as to a separated shoulder, varicose veins, or flat feet, which are capable of direct observation. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007)(noting that a lay witness is capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 308 -09 (2007) (finding that lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (discussing that unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Falzone v. Brown, 8 Vet. App. at 405 (finding that a lay person is competent to testify to pain and visible flatness of his feet). There is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding the etiology of his current disorders, which affect a complex part of the body. While he is competent to report what he experienced, he is not competent to ascertain the etiology of his current disorders, as the causative factors for such are not readily subject to lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007); Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Layno v. Brown, 6 Vet. App. 465 (1994). The Board gives more credence to the VA examiner's opinion that was rendered by a licensed medical professional rather than a lay person in light of the complexity of the medical condition at issue. In summary, the competent and probative medical evidence of record does not show that the Veteran's preexisting shoulder disability was permanently aggravated by active service. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for an acquired psychiatric disorder must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for a right shoulder disability is denied. Entitlement to service connection for a left shoulder disability is denied. ____________________________________________ LANA K. JENG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs