Citation Nr: 1322506 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 06-12 272 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a right shoulder disorder. 2. Entitlement to a total rating due to individual unemployability (TDIU) caused by service-connected disabilities. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from June 1981 to April 1989. This case was before the Board of Veterans' Appeals (Board) in October 2012 and remanded for further development to the VA Appeals Management Center (AMC) in Washington, D.C. Following the requested development, the AMC confirmed and continued the denial of entitlement to service connection for a right shoulder disorder and for a TDIU. Thereafter, the case was returned to the Board for further appellate action. The issue of entitlement to a TDIU is discussed in the REMAND section at the end of this decision. FINDING OF FACT The Veteran's right shoulder disorder, diagnosed as right shoulder impingement syndrome, was first manifested many years after service, and the preponderance of the evidence is against a finding that it is in any way related to service. CONCLUSION OF LAW The Veteran's right shoulder disorder, diagnosed primarily as impingement syndrome, is not the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1131, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issue of entitlement to service connection for a right shoulder disorder. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In October 2003, VA received the Veteran's claim, and there is no issue as to providing an appropriate application form or completeness of the application for service connection or for a TDIU. Following the receipt of that claim, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claim, including the evidence to be provided by him and notice of the evidence VA would attempt to obtain. VA informed him of the criteria for service connection, as well as that for rating service-connected disabilities and for assigning effective dates, should service connection be granted. Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claim. VA obtained the Veteran's service treatment records; records reflecting his VA treatment from February 2001 through May 2012; a January 2004 statement from the Veteran's wife; a January 2004 report from the Veteran's former employer; and the Veteran's records from the Social Security Administration. In October 1989, October 2001, January 2004, July 2005, March, April, and May 2011, and November 2012, VA examined the Veteran to determine the nature and etiology of any right shoulder disorder. The VA examination reports show that the examiners reviewed the Veteran's medical history, interviewed and examined the Veteran, documented his current medical conditions, and rendered diagnoses and opinions consistent with the remainder of the evidence of record. The VA examinations are adequate for evaluation purposes. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). In October 2012, pursuant to the Board's remand, the AMC requested that the Veteran provide the names and addresses of any private or VA physicians or hospitals who had treated him for a right shoulder disorder, so that it could assist the Veteran in obtaining those records. The AMC also requested that the Veteran inform it, if he had not had such treatment. In addition, the AMC requested that the Veteran provide any additional information that he felt was relevant to his appeal with respect to his claims for service connection for a right shoulder disorder. To date, the Veteran has not responded to those requests. In sum, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal with respect to the issue of entitlement to service connection for a right shoulder disorder. He has not identified any outstanding evidence which could support that claim; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Appeal The Veteran argues that he has a right shoulder disorder that was incurred on active service. The preponderance of the evidence is against the claim, and the appeal will be denied. Initially, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published at Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d) (West 2002); see also 38 C.F.R. § 19.7 (2012) (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999); Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Generally, for a grant of service connection, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during active service. See Cuevas v. Principi, 3 Vet. App. 542 (1992). 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, as distinguished from merely isolated findings or a diagnosis including the word chronic. When the disease identity is established, there is no requirement of evidentiary showing of continuity. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. Apart from the foregoing law and regulations, service connection may 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) . The Veteran and his wife were married in 1984 and are competent to report what he experienced in and after service. For example, they are competent to report when his right shoulder began to hurt and whether or not the pain was chronic in nature. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In certain instances, lay evidence can be competent and sufficient to establish a diagnosis of a condition. King v. Shinseki, No. 2011-7159 (Fed. Cir. Dec. 5, 2012)((the Court of Appeals for the Federal Circuit discussing 38 U.S.C.A. § 5107(b) , 38 C.F.R. § 3.307(b) , and its holdings in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009)). Such cases may occur under the following circumstances: (1) when a layperson is competent to identify the medical condition, (2) when a layperson is reporting a contemporaneous medical diagnosis, or (3) when a lay person describes symptoms which are subsequently diagnosed by a medical professional. See Jandreau, supra. Therefore, the Veteran's opinion, without more, is not dispositive, unless the particular disorders at issue are ones which are amenable to lay observation. 38 C.F.R. § 3.159(a) . Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67 (1997). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan, supra. In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999); Evans v. West, 12 Vet. App. 22 (1998). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this regard, contemporaneous evidence has greater probative weight than a history reported by the Veteran. Curry v. Brown, 7 Vet. App. 59 (1994). However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30 (1993). The Veteran's service treatment records and the report of his August 1980 service entrance examination are negative for any complaints or clinical findings of a right shoulder disorder of any kind. The Veteran's service treatment records do show that in December 1981, he sustained a left shoulder strain in a motor vehicle accident. There were no findings of right shoulder involvement. In December 1985, the Veteran was involved in a second automobile accident. The health care provider suspected an odontoid fracture of the cervical spine; however, X-rays were negative. The Veteran also complained that his left shoulder was tender. There were no findings of right shoulder involvement. In April 1989, approximately 2 weeks after his separation from service, the Veteran filed a claim of entitlement to service connection for a back disorder and a hearing loss disability. In October 1989, the RO granted the Veteran's claim of entitlement to service connection for dorsolumbar paravertebral myosistis. A noncompensable rating was assigned March 5, 1989 and increased to 40 percent, effective June 12, 2001. In October 2003, the Veteran filed his initial claim of entitlement to a right shoulder disorder. From February to March 2001, the Veteran was hospitalized by VA following a traumatic above-the-knee amputation of his left leg in a motorcycle accident. In March 2001, during his hospitalization, the Veteran complained of right shoulder pain. X-rays of both shoulders were taken and both were, reportedly, normal. In April 2002, the Veteran was referred to the VA Physical Therapy Service for a one year history of intermittent right shoulder pain. He was seen by on several occasions for right shoulder pain. No diagnosis of a chronic, identifiable right shoulder disorder was offered. In January 2004, the Veteran's wife reported that approximately one year after his separation from service, the Veteran began to experience pain in multiple joints, including his shoulders. She suggested that his pain was the result of multiple injuries sustained in service and stated that the pain had progressed to t he point that he was no longer able to work. In January 2004, the Veteran was examined by VA to determine the nature and etiology of any shoulder disorder found to be present. X-rays of both shoulders were normal. Following the examination, the VA examiner stated that he was unable to find any shoulder pathology. During VA treatment in July 2010, the Veteran reported right upper extremity pain. No diagnosis was offered. In November 2012, the Veteran was examined by VA to determine the nature and etiology of any right shoulder disorder found to be present. The Veteran stated that in service in 1985, he had injured both shoulders in an automobile accident. X-rays were negative for any findings of arthritis in either shoulder. Following the examination, the relevant diagnosis was right shoulder impingement syndrome. The VA examiner opined that it was less likely than not that the Veteran's right shoulder disorder had been incurred in or caused by an inservice injury, event, or illness. In this regard, the examiner noted that the claims folder was completely negative for any evidence of right shoulder trauma, treatment, or diagnosis due to the Veteran's accident in service in 1985. The Veteran's right shoulder disorder, diagnosed as right impingement syndrome was manifested no earlier than March 2001, when he reported his first complaints of right shoulder pain. That was approximately 12 years after his separation from service. Although the Veteran and his wife report that he began to experience chronic right shoulder pain in or shortly after service, the service treatment records do not support such chronicity. While not dispositive, such a finding is for consideration and must be weighed and evaluated with the totality of the evidence. Not only was there no evidence of right shoulder involvement, the Veteran served the remaining three years of service without any complaints or clinical findings of a right shoulder disorder of any kind. Had he had right shoulder problems, it is reasonable to expect that he would have brought them to the attention of military health care providers who were specifically tasked with continuing medical care. The Veteran clearly sought treatment for other disorders after December 1985: for example, back spasms in August 1986; influenza in December 1986; calluses of the feet in March 1988; and a left ankle sprain in 1988. That he did not seek treatment for right shoulder problems militates against his claim. This is particularly true since contemporaneous evidence has greater probative weight than a history reported by the Veteran. Curry v. Brown, 7 Vet. App. 59 (1994). The Veteran did not file a claim of entitlement to service connection for a right shoulder disorder until October 2001, again, many years after service. As above, such a finding is not dispositive but is relevant to the claim of continuing symptomatology after service. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service is probative evidence against the claim. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board where it found that veteran failed to account for the lengthy time period after service for which there was no clinical documentation of low back condition); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). Moreover, had the Veteran been experiencing chronic right shoulder pain in and shortly after service, it is reasonable to expect that he would have filed an earlier claim. The Veteran knew how to file a claim for VA compensation, because two weeks after service, he had filed a successful claim for service connection for a back disorder. That he did not do so with respect to a right shoulder disorder further militates against his appeal. Finally, the Veteran has not submitted any evidence of a medical nexus between his currently diagnosed right shoulder impingement syndrome and service. In fact, the recent VA medical opinion is against such a conclusion. Although the Veteran and his wife suggest such a nexus, the nature and etiology of right shoulder impingement syndrome are not commonly within the knowledge and experience of lay persons. Furthermore, the lay statements do not meet the other criteria under which lay evidence can be competent and sufficient to establish a diagnosis of a condition: Neither the Veteran or his wife were reporting a contemporaneous medical diagnosis, nor were they describing symptoms which were subsequently diagnosed by a medical professional. Jandreau. Therefore, the opinions of the Veteran and his wife, without more, are not dispositive. The preponderance of the evidence is against the Veteran's claim. Although he has a current right shoulder disability, it was not manifested in service and the competent, probative evidence of record is against a relationship or nexus between that disability and any injury or disease during active service. Therefore, service connection for a right shoulder disability is not warranted, and the appeal is denied. In arriving at this decision, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, the preponderance of the evidence is against the Veteran's claim. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for a right shoulder disorder, diagnosed as right shoulder impingement, is denied. REMAND The Veteran also seeks entitlement to a TDIU. A TDIU is granted when the disabled person is unable to secure or follow a substantially gainful occupation due solely to his service-connected disabilities. In March 2011, VA examined the Veteran. However, the examiner's opinion is not clear and an addendum will be directed. Accordingly, the issue of entitlement to a TDIU is remanded to the RO/AMC for the following actions: 1. Schedule the Veteran for a comprehensive VA examination to determine the extent of the collective impairment due to the Veteran's service-connected disabilities: dorsolumbar paravertebral myositis, evaluated as 40 percent disabling; the residuals of a fractured right second toe, evaluated as 10 percent disabling; tinnitus, evaluated as 10 percent disabling; and a skin condition of the hands and feet, evaluated as noncompensable. All indicated tests and studies must be performed, and any indicated consultations must be scheduled. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge the receipt and review of these materials in any report generated as a result of this remand. Any consideration as to whether a veteran is unemployable is a subjective one, that is, one that is based upon the veteran's actual level of industrial impairment, not merely the level of industrial impairment experienced by the average person. Advancing age and nonservice-connected disability may not be considered in the determination of whether a veteran is entitled to a TDIU. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In reviewing the claims file, the examiner should note the following: On February 25, 2001, the Veteran was involved in a motorcycle accident and sustained a traumatic amputation of his left leg above the knee. In April 2002, the Social Security Administration granted the Veteran's claim for disability benefits due to the presence of affective disorders. It was noted that the Veteran's disability had begun on February 26, 2001. In January 2004, the Veteran's former employer reported that from March 7, 1992 to February 27, 2002, the Veteran had worked for them as a stockroom clerk. At the time his employment ended, it was noted that he had been out on sick leave for over a year. In March 2011, the Veteran was examined by VA, in part, to determine the level of impairment attributable to his service-connected lumbar spine disorder. Following the examination, the diagnosis was lumbar paravertebral myositis. With respect to his occupational activities, such disability caused pain, decreased mobility, decreased strength in his lower extremity, problems with lifting and carrying, and difficulty reaching. The effect on his usual occupation and work problems was the assignment of different duties. The examiner also stated that the Veteran's low back disorder moderately affected the performance of his usual daily activities and self-care. In addition to the Veteran's spine, VA performed an examination of the Veteran's joints in April 2011. Following that examination, the diagnoses were 1) clinical evidence of left shoulder impingement syndrome, 2) clinical evidence of right patellofemoral pain syndrome, and 3) medial patellar chondromalacia and subchondral cyst changes. Based on the findings from the spine and joint examinations, the March 2011 VA examiner opined that the Veteran was unable to obtain and maintain any form of employment, sedentary, semi-sedentary, or unrestricted. As noted above, however, those examinations had considered not only service-connected disorders but nonservice-connected disabilities. The VA examiner went on to say that the Veteran's lumbar paravertebral myositis affected his capacity to maintain a normal sitting or standing position, such that he needed to shift his weight or change his body position in his wheelchair. The examiner stated that this made the Veteran vulnerable to poor concentration and a lack of on-the-job consistency. While lumbar paravertebral myositis is a service-connected disorder, such a statement is confusing, given the fact that the VA examiner was basing his opinion on the results of the spine and joint examinations. Following the examination, the examiner must render an opinion as to whether the Veteran's SERVICE-CONNECTED DISORDERS, BY THEMSELVES, AND WITHOUT REGARD TO ANY OTHER NON-SERVICE CONNECTED DISORDER INCLUDING the amputation of the leg or any depressive disorder. preclude the Veteran from securing or following a substantially gainful occupation. With respect to all opinions, the examiner must state how and why he or she reached the opinion they did. The Veteran is advised that it is his responsibility to report for the examination and to cooperate in the development of his claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2012). If the Veteran fails to report for the examination, the AMC must associate with the claims file a copy of the notice informing the Veteran of the date, time, and location of the examination. If that notice was returned by the Post Office as undeliverable, that fact must be noted in writing and associated with the claims folder. 2. When the actions requested in part 1 have been completed, undertake any other indicated development. Then readjudicate the issue of entitlement to a TDIU. If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The Veteran need take no action unless he is notified to do so. However, he is advised that he has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (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. 2007). ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs