Citation Nr: 1322930 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 10-32 003 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for a left shoulder disability. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Scott Shoreman, Counsel INTRODUCTION The Veteran had a period of active honorable military service from November 1973 to November 1976. A subsequent period of service, from November 1976 to August February 1980, was characterized as under other than honorable conditions, and VA benefits based on this later period of service is barred. This matter comes before the Board of Veterans' Appeals (Board) from November 2009 and February 2010 ratings decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran testified in November 2011 before the undersigned Veterans Law Judge at a Travel Board hearing at the above VARO; a transcript is of record. The issue of entitlement to service connection for right ear hearing loss 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 There is no probative evidence that the Veteran's left shoulder disability is causally or etiologically related to his honorable period of service. CONCLUSION OF LAW The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 C.F.R. § 3.159 (2012); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.159, 3.326 (2012); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). Prior to initial adjudication of the Veteran's claim, a letter dated in August 2009 fully satisfied the duty to notify provisions of VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice requirements regarding disability rating and effective date were satisfied in the August 2009 letter to the Veteran. See Dingess/Hartman, supra. With respect to the duty to assist in this case, the Veteran's service treatment records, service personnel records, private treatment records, and Social Security records have been obtained and associated with the claims file. The Veteran has not made the RO or the Board aware of any additional pertinent evidence that needs to be obtained in order to fairly decide the issues addressed in this decision, and has not argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced him in the adjudication of these issues. As there is no indication that there are additional records that need to be obtained that would assist in the adjudication of the claims, the duty to assist has been fulfilled. The RO did not afford the Veteran a VA examination on the basis that there is already sufficient medical evidence to decide the claim, and the Board agrees. In McClendon v. Nicholson, 20 Vet. App. 79 (2006), the Court reviewed the criteria for determining when an examination is required by applicable regulation and how the Board applies 38 C.F.R. § 3.159(c). The three salient benchmarks are: competent evidence of a current disability or recurrent symptoms; establishment of an in-service event, injury, or disease; and indication that the current disability may be associated with an in-service event. While the Veteran had been diagnosed with a left shoulder disability, there is no indication that it is associated with an in-service event from the November 1973 to November 1976 period of service, as discussed below in detail. Therefore, the Board finds that the evidence of record does not trigger the necessity of an examination in order to decide the claim on the merits. See 38 C.F.R. § 3.159(c). The Veteran has been afforded hearings before a Veterans Law Judge (VLJ) and RO Decision Review Officer (DRO) in which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ and DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearings, the VLJ and DRO noted that basis of the prior determinations and noted the elements of the claims that were lacking to substantiate the claim for service connection. In addition, the VLJ and DRO sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim, such as treatment records. Moreover, the Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the Board and DRO hearings. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate the claim for benefits. As such, the Board finds that, consistent with Bryant, the VLJ and DRO complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. II. Service Connection Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. This means that the facts establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). Service connection will also be presumed for certain chronic diseases, including arthritis, if manifest to a compensable degree within one year after discharge from service. See 38 C.F.R. §§ 3.307, 3.309 (2012). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. 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). Indeed, 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) (West 2002). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. See id. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). A person seeking VA benefits must first establish that they have attained the status of veteran. Holmes v. Brown, 10 Vet. App. 38 (1997). The term 'veteran' means a person who served in the active military, naval, or air service and who was discharged or released under conditions other than dishonorable. 38 C.F.R. § 3.1(d). If the former service member did not die in service, pension, compensation, or dependency and indemnity compensation, is not payable unless the period of service on which the claim was based was terminated by a discharge or release under conditions other than dishonorable. 38 U.S.C.A. § 101(2) (West 2002); 38 C.F.R. § 3.12 (2012). A discharge under honorable conditions is binding on the VA as to the character of discharge. 38 C.F.R. § 3.12(a). However, a discharge or release from service under specified conditions is a bar to the payment of benefits unless it is found that the person was insane at the time of committing the offense causing such discharge or release. 38 C.F.R. § 3.12(b). The record reflects that the appellant had a period of honorable military service from November 1973 to November 1976. He had a subsequent period of active duty, from November 1976 to February 1980, from which he was discharged under other than honorable conditions. The DD Form 214 states that it was an administrative discharge for conduct triable by a court martial. His service personnel records indicate that he was absent without leave (AWOL) in March 1979 and was dropped from the rolls due to desertion. He returned to duty in July 1979 and was again AWOL in September 1979. He was apprehended by the civilian authorities after 124 days and reported being disillusioned with the military. In January 1980 he was given a mental status evaluation and was cleared for any administrative action deemed appropriate by his commander. The Veteran indicated he did not desire a separation examination. In February 1980 he voluntarily requested a discharge. In a September 1980 administrative decision, the RO in Waco, Texas found that the discharge for the November 1976 to February 1980 period of service was considered to have been under dishonorable conditions and was a bar to VA benefits. Therefore, the character of discharge is a bar to benefits from that period of service. See 38 C.F.R. § 3.12(b). The service treatment records from the first period of active service do not show any complaints, treatment or diagnoses related to the left shoulder. Post service records beginning in 2003, show left shoulder complaints and disability, with 2008 records from a chiropractor mentioning a 2007 work place accident, as well as a 1977 injury from bull riding that required subsequent surgery to account for the Veteran's condition. A 12 cm scar on the shoulder was felt to be from the 1977 surgery. September 2009 private orthopedic treatment records also state that the Veteran injured his left shoulder while bull riding in 1977. The Veteran underwent a left shoulder hemiarthroplasty in October 2009. The Veteran wrote in a December 2009 statement that a military doctor performed surgery in 1977 to keep his shoulder from dislocating itself. January 2010 private treatment records state that the Veteran's first left shoulder injury was in 1977. Subsequent treatment records do not provide an opinion on etiology. The Veteran testified at the May 2010 DRO hearing that his first left shoulder injury was dislocating it in March 1977. The Veteran testified at the November 2011 Board hearing that he injured his left shoulder bull riding in 1977. He further testified that he also injured his left shoulder playing basketball while in Germany in September or October 1977. A December 2011 statement from an individual who had known the Veteran for two years states that the Veteran reported that he dislocated his left arm while playing basketball. Furthermore, the Veteran could not use his left arm after the 2007 injury like he had before. The Veteran's wife, who had been with him for 31 years, (1980) also wrote in December 2011 that the Veteran reported injuring his left shoulder playing basketball in Germany. As discussed above, the Veteran's character of discharge from his November 1976 to February 1980 period of service is a bar to benefits. The Veteran has consistently reported injuring his left shoulder in a 1977 bull riding accident. Furthermore, his Board hearing testimony was that he also injured the left shoulder later in 1977 while stationed in Germany. The December 2011 lay statements also indicate that the Veteran reported injuring his left shoulder while playing basketball in Germany during service. The service personnel records indicate that the Veteran served in Germany from August 1975 to October 1978. Therefore, the Veteran's report of injuring his left shoulder playing basketball in Germany in 1977 is credible. His consistent reports of injuring his left shoulder while bull riding in 1977 are also credible. There is no indication from the record, including the Veteran's own reports, that he sustained a shoulder injury from his prior period of honorable active service. The treatment records discussed above indicate that the Veteran had injured his shoulder in 1977 and injured it again in 2007. At best, this shows the onset of disability during a period of service from which VA benefits is barred. The record also does not indicate that arthritis related to the left shoulder was manifest to a compensable degree within a year of the first period of active honorable service. Accordingly, service connection for left shoulder disability is denied. Because the evidence preponderates against the claim of service connection for a left shoulder disability, the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra. ORDER Service connection for a left shoulder disability is denied. REMAND The Veteran contends his right ear hearing loss was incurred in service when another soldier next to the Veteran on the firing range discharged his M60 machine gun before the Veteran had inserted his ear plugs into his ears. He contends it has progressively worsened since then, and his wife indicated in a 2011 statement that the Veteran appeared to have difficulty hearing since they had been together, (approx. 1980). Given these statements, together with a May 2010 private audiogram that reflects the presence of right ear hearing loss, a VA examination and opinion should be obtained. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination for his right ear hearing loss. The claims file should be made available to the examiner for review prior to the examination. All necessary tests should be conducted and the examiner should review the results of any testing prior to completion of the report. Based on the examination and review of the record, the examiner is requested to provide an opinion as whether it is at least as likely as not that the Veteran's right ear hearing loss is related to his November 1973 to November 1976 period of active service. In offering this assessment, the examiner should assume that the Veteran was exposed to acoustic trauma from M60 machine gun fire during basic training in 1974. A detailed rationale for any opinion expressed should be set forth. If the examiner cannot reach an opinion without resorting to speculation, the examination report must state why that is so. 2. Readjudicate the Veteran's claim. If the benefit sought on appeal is not granted in full, the RO should issue the Veteran a supplemental statement of the case and provide him an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter 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). ______________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs