Citation Nr: 1322983 Decision Date: 07/18/13 Archive Date: 07/24/13 DOCKET NO. 09-36 570 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to service connection for a right shoulder disability. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Patricia Veresink, Associate Counsel INTRODUCTION The Veteran had active service from October 2006 to September 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The issue was remanded for further development by the Board in January 2012. The case is once again before the Board for appellate consideration. The Board notes the issue of service connection for migraine headaches was previously on appeal. However, in an October 2012 rating, the Appeals Management Center granted service connection for that disorder. Thus, that issue is resolved and is no longer before the Board. See generally Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) and Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). FINDING OF FACT A right shoulder disability was not shown in service, there is no competent evidence of arthritis within a year of discharge from service, and there is no medical opinion of record linking the Veteran's right shoulder condition to service. CONCLUSION OF LAW The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126 (West 2002) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). The record shows that appropriate VCAA notice was provided in December 2007, prior to the decision on appeal. The letter provided notice regarding what information and evidence is needed to substantiate her claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. She was also advised of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. The Board also finds that there has been compliance with the VCAA assistance provisions. The Veteran's service treatment records and VA treatment records have been obtained. The Board also notes that actions requested in the prior remand have been undertaken. Indeed, a January 2012 letter asked the Veteran to provide information concerning treatment providers, and a VA examination was scheduled. However, although the Veteran reported for the migraine examination, she did not report for the examination scheduled to determine the nature of her right shoulder condition and to obtain an opinion as to whether a right shoulder disability was related to service. She was advised in April 2012 that she did not report, and was again scheduled for an examination. In July 2012, the VA Medical Center advised that she failed to report for the examination. She has not provided good cause for her failure to report nor requested rescheduling of the examination. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which she might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. Therefore, she was provided with a meaningful opportunity to participate in the claims process. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that she has a right shoulder disability that is causally related to a fall from a bunk during service. In her claim, the Veteran reported that her right shoulder injury occurred in May 2007. Review of the Veteran's service treatment records reveals no complaints or findings concerning her right shoulder. Although the Veteran noted numerous stress fractures and joint pain in a June 2007 report of medical assessment, she did not note any shoulder pain. In a June 2007 report of medical examination, the examiner noted the Veteran's upper extremities and other musculoskeletal system as clinically normal. On a corresponding June 2007 report of medical history, the Veteran specifically denied having a painful shoulder, arthritis, rheumatism, or bursitis, and denied impaired use of the arms or hands, swollen or painful joints, and bone, joint, or other deformity. Following service, a July 2009 X-ray revealed an unremarkable right shoulder. A November 2009 VA treatment record showed a complaint of pain in the posterior shoulder area for about two to three years. The Veteran noted daily pain, but no restriction in range of motion. The examiner assessed chronic right shoulder pain. In January 2010, an MRI of the shoulder was obtained. The radiologist found a grossly intact biceps-labral complex and no tendon retraction, muscle atrophy, os acromiale, joint effusion, or gross bone marrow abnormality. Mild degenerative changes of the acromioclavicular joint were noted. A February 2010 follow up for right posterior shoulder pain showed no repetitive strain. The MRI was interpreted as showing no significant abnormality of the shoulder. No diagnosis concerning the right shoulder was provided. VA treatment records note the Veteran reporting right shoulder pain of several years duration, but those records provide no opinion concerning whether the Veteran suffers from a right shoulder disability that is related to service. The Board notes there is no competent medical opinion of record linking her current right shoulder condition to service. The Veteran was scheduled for a VA examination in February 2012 and July 2012 for her right shoulder claim. However, she did not report for the examinations, and has not provided good cause for failing to report nor has she requested the examination be rescheduled. The purpose of this examination was to determine the current nature of her right shoulder condition and to obtain an opinion as to whether any right shoulder disability found was related to service. "The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence." Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, the Veteran's service treatment records are negative for complaints or findings of a right shoulder injury or disability. She specifically denied shoulder complaints on her report of medical history in June 2007, which is only one month after her alleged injury. An x-ray from July 2009 revealed no abnormalities, and the first evidence of any degenerative changes was in a January 2010 MRI, more than two years after her discharge from service. In short, there is no evidence of a shoulder condition during service, and no evidence of arthritis within one year following discharge from service. Thus, to establish service connection, there must be competent evidence linking her current right shoulder condition to service. However, she did not report for the VA examination scheduled to obtain an opinion on such relationship, and no other medical evidence has been submitted showing such a relationship. While the Veteran alleges that her current complaints of right shoulder pain are due to an injury in service, the Veteran has not demonstrated that she has expertise in medical matters. The question as to the etiology of her shoulder pain is a matter requiring medical expertise to determine. In this regard, shoulder pain may be due to a number of reasons, and such question is one typically determined by persons with medical training. Thus, the Veteran's lay opinion as to the cause and etiology of her right shoulder pain is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Moreover, while the Veteran now contends that she suffered from right shoulder pain during service and since service, such statement is inconsistent with her service treatment records which reveal no complaints concerning her shoulder. In addition, such statement directly contradicts her denial of shoulder problems on her report of medical history in June 2007. As such, her contention of continuous right shoulder problems since service is not persuasive. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). In summary, there is no competent and credible evidence of a right shoulder disability during service or of arthritis within one year following discharge from service. Moreover, there is no competent and probative opinion of record linking the Veteran's current right shoulder condition to service. Accordingly, there is no basis upon which service connection can be established. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER Entitlement to service connection for a right shoulder disability is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs