Citation Nr: 1323378 Decision Date: 07/23/13 Archive Date: 08/01/13 DOCKET NO. 09-48 021 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right shoulder disability, to include as secondary to a service-connected disability. 2. Entitlement to service connection for a left shoulder disability, to include as secondary to surgical removal of the left arm cyst. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD K. Curameng, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from December 1972 to December 1978. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Waco, Texas Department of Veterans Affairs (VA) Regional Office (RO). The issue of service connection for a left shoulder disability is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action on his part is required. FINDING OF FACT A right shoulder disability was not manifested in service; arthritis of the right shoulder was not manifested in the first postservice year, and the preponderance of the evidence is against a finding that the Veteran's current right shoulder disability (arthritis) is related to his service, or was caused or aggravated by a service-connected disability. CONCLUSION OF LAW Service connection for a right shoulder disability, to include as secondary to a service-connected disability, is not warranted. 38 U.S.C.A. 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay 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. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. An April 2008 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing, and informed him of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record, and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent postservice treatment records have been secured. The RO did not arrange for a VA examination/opinion as to the claim decided herein because such was not necessary. Absent any evidence suggesting that the Veteran's right shoulder disability may be associated with his service (i.e. evidence of a related event, disease or injury therein) or may be related to (was caused or aggravated by) a service-connected disability, an examination to secure a medical nexus opinion is not warranted. See 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512, 516 (2004). Even the low threshold standard for when an examination is needed endorsed by the United States Court of Appeals for Veterans Claims in McClendon v. Nicholson, 20 Vet. App. 27 (2006) is not met. Legal Criteria, Factual Background and Analysis The Board notes that it has reviewed all of the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system) (no pertinent evidence was found in Virtual VA) with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claim. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection also may be granted for any disease initially 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). A disease may be service connected if shown to be of a chronic nature in service, or if not chronic, then seen in service with continuity of symptomatology demonstrated after discharge. 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d); Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Certain chronic disabilities (to include arthritis) may be service connected on a presumptive basis if manifested to a compensable degree within a specified period of time following discharge from active duty (one year for arthritis). 38 U.S.C.A. §§ 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. To substantiate a claim of service connection, there must be evidence of a current disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the claimed disability and the disease or injury in service. See Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and an evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Service connection may be established on a secondary basis for a disability that is proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310(a); see also Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The threshold legal requirements for a successful secondary service connection claim are: (1) Evidence of a current disability for which secondary service connection is sought; (2) a disability which is service connected; and (3) competent evidence that the service connected disability caused or aggravated the disability for which service connection is sought. 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); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran's STRs are silent for complaints, findings, treatment, or diagnosis pertaining to a right shoulder disability. An October 1977 STR notes there were large knots in his left arm (and that surgery to remove lipomas was scheduled). A July 1978 report of medical history shows, the Veteran endorsed swollen or painful joints (which unspecified), but denied painful or "trick" shoulder. On August 1978 service separation examination the extremities were normal on clinical evaluation. In a December 1978 Statement of Medical Condition, there was no mention of a right shoulder disability. A November 2007 VA treatment record shows that the Veteran had the onset of bilateral shoulder pain two years prior. A November 2008 VA treatment record notes there was degenerative joint disease (DJD) of both shoulders. As there is no evidence that a right shoulder disability was manifested in service or that arthritis in the shoulder was manifested in the first postservice year; service connection for the current right shoulder arthritis on the basis that it became manifest in service and persisted or on a presumptive basis (for right shoulder arthritis as chronic disease under 38 U.S.C.A. §§ 1112, 1137) is not warranted. There is also no competent evidence in the record that otherwise relates the Veteran's right shoulder disability(arthritis) to his service. VA treatment records note a diagnosis of a right shoulder arthritis; but do not indicate or suggest that such disability may be directly related to the Veteran's service. It has not been alleged that the Veteran's right shoulder disability is somehow directly related to his service (was incurred or aggravated therein). A lengthy time interval between the Veteran's service and the initial post service manifestation of a disability for which service connection is sought is, of itself, a fact or weighing against a finding of service connection. Here, that interval is some 31 years. Notably, during the interval, the Veteran filed (from 1979 to 2003) claims seeking VA benefits based on disabilities other than of the right shoulder. The Veteran's representative has alleged that the Veteran's right shoulder arthritis is related to bilateral arm surgery he had in service. A review of the Veteran's STRs found that while he complained in October 1977of a possible cyst in the right humerus, cyst removal/biopsy surgery is reported for the left arm only. The Veteran has raised a secondary service connection theory of entitlement. His service connected disabilities include: left ventricular hypertrophy, hypertension with left ventricular hypertrophy, right patella chondromalacia with arthritis, chronic right ankle sprain associated with right patella chodromalacia with arthritis, gout, postoperative hemorrhoids, hypertension, left knee DJD associated with right patella chondromalacia with arthritis and postoperative left arm cyst. There has been no evidence submitted and the record does not suggest that any of these service connected disabilities caused or aggravated the right shoulder arthritis. To the extent that it is being alleged that right shoulder arthritis is secondary to service connected residuals of right shoulder cyst surgery, it is noteworthy that service connection has not been established for residuals of right shoulder cyst removal surgery, and that therefore that theory of entitlement lacks legal merit. The preponderance of evidence is against this claim. Accordingly, service connection for a right shoulder disability (to include on a secondary service connection theory of entitlement) must be denied. ORDER Service connection for a right shoulder disability, to include on a secondary service connection theory of entitlement, is denied. REMAND While the notice provisions of the VCAA appear to be satisfied, a review the record found that further development is necessary for VA to satisfy its duty to assist the Veteran in the development of this claim. The Veteran's representative has alleged (in May 2013) that his left shoulder DJD is related to cyst removal arm surgery in service . As was noted earlier, a left arm lipoma removal surgery in service is shown by the record (and residuals are service-connected). It is also shown that the Veteran has left shoulder arthritis. To substantiate his secondary service connection theory of entitlement the Veteran must show that the residuals of left arm cyst removal caused or aggravated the left shoulder arthritis. He has not been afforded a VA nexus examination in this matter. Under the circumstances shown, such examination is necessary. Accordingly, the case is REMANDED for the following: 1. The RO should arrange for an orthopedic examination of the Veteran to ascertain the likely etiology of his left shoulder DJD, and specifically whether or not it was caused or aggravated by the removal of his left arm cyst and residuals thereof. The Veteran's claims file must be reviewed by the examiner in conjunction with the examination. Based on review of the record and examination of the Veteran, the examiner should opine: Whether or not the Veteran's left shoulder disability (arthritis) at least as likely as not (a 50 % or better probability) was caused or aggravated by the surgical removal of his left arm cyst or the [service-connected] residuals of such procedure. The examiner must explain the rationale for the opinion, citing to any supporting factual data. 2. The RO should then review the record and re-adjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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 for additional development or other appropriate action must be handled in an expeditious manner. _________________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs