Citation Nr: 1324353	
Decision Date: 07/31/13    Archive Date: 08/07/13

DOCKET NO.  07-18 422	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to service connection for residuals of a left shoulder and arm injury including on a secondary basis.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESSES AT HEARINGS ON APPEAL

Appellant and his wife


ATTORNEY FOR THE BOARD

N. T. Werner, Counsel

INTRODUCTION

The Veteran had active service from December 1959 to December 1976 (honorable) and from December 1976 to December 1982 (dishonorable for VA purposes).  He is served in combat in Vietnam and his decorations include the Combat Infantryman Badge (CIB).

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated in April 2010 of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  

In November 2010, the Veteran testified at a hearing before a Decision Review Officer (DRO) at the RO.  The Veteran also presented hearing testimony before a Veterans Law Judge (VLJ) at a Board hearing held at the RO in March 2011.  The hearing transcripts are associated with the claims file.  In November 2011, the Board remanded the above issue for additional development.

The VLJ that conducted the March 2011 hearing has since retired.  In May 2013, the Veteran notified the Board that he did not want another hearing in connection with his appeal.  Therefore, the Board finds that VA adjudication of the appeal may go forward without providing him another Board hearing.

Following issuance of the most recent supplemental statement of the case the Veteran filed additional evidence with VA. However, in February 2013, his representative waived agency of original jurisdiction (AOJ) of some of that evidence.  As to the evidence received by VA in February 2013, the Board finds that adjudication of the appeal may go forward without remanding it for AOJ review despite no waiver because the records are either duplicative of evidence already found in the claims file or not pertinent evidence.  See 38 C.F.R. § 19.31 (2012).




FINDING OF FACT

The most competent and credible evidence of record shows that the Veteran has not been diagnosed with a left shoulder and arm disability, distinctly from his already service connected peripheral neuropathy of the left upper extremity, at any time during the pendency of the appeal and that no left shoulder and arm disability was caused or aggravated by a service-connected low back disability.


CONCLUSION OF LAW

Residuals of a left shoulder and arm injury were not incurred in or aggravated by military service or caused or aggravated by a service-connected disability.  38 U.S.C.A. §§ 1110, 1131, 1154(a), (b), 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

Under 38 U.S.C.A. § 5102 VA first has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete.  Second, under 38 U.S.C.A. § 5103(a), VA has a duty to notify the claimant of the information and evidence needed to substantiate and complete a claim, i.e., existence of a current disability, the degree of disability, and the effective date of any disability benefits.  The appellant must also be notified of what specific evidence he is to provide and what evidence VA will attempt to obtain.  Third, VA has a duty to assist claimants in obtaining evidence needed to substantiate a claim.  This includes obtaining all relevant evidence adequately identified in the record and, in some cases, affording VA examinations.  38 U.S.C.A. § 5103A. 

In Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements, of which notice must be provided prior to the initial adjudication: (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.  See 38 U.S.C. § 5103(a).  

Initially, the Board finds that there is no issue as to whether the Veteran was provided an appropriate application form or issue as to whether the claimant has veteran status.  Next, the Board finds that letters dated in January 2010 and November 2011 provided the Veteran with notice that fulfills the provisions of 38 U.S.C.A. § 5103(a) including notice of the laws and regulations governing disability ratings and effective dates as required by the Court in Dingess.  While the Veteran may not have been provided adequate 38 U.S.C.A. § 5103(a) notice prior to the adjudication of the claim, the Board finds that providing him with adequate notice in the above letters followed by a readjudication of the claim in the November 2012 supplemental statement of the case "cures" any timing problem associated with inadequate notice or the lack of notice prior to the initial adjudication.  Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (Mayfield III), citing Mayfield II, 444 F.3d at 1333-34.  The Board also finds that even if VA had an obligation to provide the Veteran with additional 38 U.S.C.A. § 5103(a) notice and failed to do so this notice problem does not constitute prejudicial error in this case because the record reflects that a reasonable person could be expected to understand what was needed to substantiate the claim after reading the above letters as well as the rating decision, the statement of the case, the supplemental statements of the case, and the Board remand.  See Shinseki v. Sanders, 129 S.Ct. 1696 (2009).  

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who conducts a hearing fulfill two duties to comply with the above 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 March 2011 Board hearing the Veteran was assisted at the hearing by an accredited representative and that representative and the VLJ asked questions to ascertain the extent of any in-service event or injury and whether any of the Veteran's current disabilities were related to his service and/or a service connected disability.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative that was not obtained while the appeal was in remand status or, as explained below, is not available.  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 his claim for service connection.  Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

As to the duty to assist, the Board finds that VA has secured all available and identified pertinent in-service and post-service evidence including his service treatment records; his records from the Social Security Administration (SSA); and all available VA medical records dated since 1983 from all Texas VA Medical Centers including from the Temple, Dallas, and Houston VA Medical Centers in substantial compliance with the Board's remand instructions.  See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict compliance with the terms of a remand request, is required); Dyment v. West, 13 Vet. App. 141, 146-47 (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination more than substantially complied with the Board's remand order).  In this regard, while the appeal was in remand status, both the Dallas and Houston VA Medical Centers notified VA that they did not have any other post-1984 treatment records of the Veteran.  See letters dated in September 2012 and October 2012.  Therefore, the Board finds that adjudication of this claim may go forward without another request of these records.  See Gobber v. Derwinski, 2 Vet. App. 470, 472 (1992) (the "'duty to assist' is not a license for a 'fishing expedition' to determine if there might be some unspecified information which could possibly support a claim . . . [and] this duty is limited to specifically identified documents that by their description would be facially relevant and material to the claim").  

The record also shows that the Veteran was provided with a VA examination in December 2011 that is adequate to adjudicate the claim and substantially complies with the Board's remand instructions because, after a review of the record on appeal as well as after an examination, the examiner provided an opinion as to his current diagnoses based on citation to relevant evidence found in the claims file and a discussion of the positive service treatment records as well as the Veteran's lay claims.  See 38 U.S.C.A. § 5103A(d); Barr v. Nicholson, 21 Vet App 303 (2007); Stegall; D'Aries; Dyment.

In summary, the facts relevant to this appeal have been properly developed and there is no further action to be undertaken to comply with the provisions of 38 U.S.C.A. §§ 5103(a), 5103A or 38 C.F.R. § 3.159.  Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of the appeal.  See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993).  

In adjudicating the claim below, the Board has reviewed all of the evidence in the Veteran's claims file including those found in Virtual VA.  Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that all the evidence submitted by the Veteran 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 Veteran's claims folder shows, or fails to show, with respect to the claim.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000).

The Claim

The Veteran and his representative contend that the Veteran has current left shoulder and arm disability either as a result of being injured (a shell fragment wound) in combat during one of his two tours in the Republic of Vietnam and/or because of his documented fall from a ladder in 1961.  In the alternative, the Veteran testified that he had left shoulder and arm disabilities due to his low back disability.  It is also requested that the Veteran be afforded the benefit of the doubt. 

Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptomatology after service is required for service connection if the disability is one that is listed in 38 C.F.R. § 3.309.  38 C.F.R. § 3.303(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  In addition, service connection may also be granted on the basis of a post-service initial diagnosis of a disease, where the physician relates the current condition to the period of service.  38 C.F.R. § 3.303(d).  Other specifically enumerated disorders, including arthritis will be presumed to have been incurred in service if they manifested to a compensable degree within the first year following separation from active duty.  38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012).  

In order to establish service connection for the claimed disability, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability.  See Hickson v. West, 12 Vet. App. 247, 253 (1999).  The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim."  See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

In cases where a Veteran asserts service connection for injuries or disease incurred or aggravated in combat, 38 U.S.C.A. § 1154(b) (West 2002) and its implementing regulation, 38 C.F.R. § 3.304(d) (2012), are applicable.  This statute and regulation ease the evidentiary burden of a combat Veteran by permitting the use, under certain circumstances, of lay evidence.  If the Veteran was engaged in combat with the enemy, VA shall accept as sufficient proof of service connection satisfactory lay or other evidence of service incurrence, if the lay or other evidence is consistent with the circumstances, conditions, or hardships of such service.  38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d).  The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that in the case of a combat Veteran not only is the combat injury presumed, but so is the disability due to the in-service combat injury.  Reeves v. Shinseki, 682 F.3d 988, 998-99 (Fed. Cir. 2012).  To establish service connection, however, there must be the evidence of a current disability and a causal relationship between the current disability and the combat injury.  Id. (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).

Service connection may also be granted where disability is proximately due to or the result of already service-connected disability.  38 C.F.R. § 3.310.  Compensation is payable when service-connected disability has aggravated a non-service-connected disorder.  Allen v. Brown, 7 Vet. App. 439 (1995) (en banc).

In evaluating the evidence in any given appeal, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Evans v. West, 12 Vet. App. 22, 30 (1998).  

As to an in-service injury, the Board finds that the claimant is entitled to the presumptions found at 38 U.S.C.A. § 1154(b) due to his award of the CIB during his first period of qualifying service because he is a combat Veteran.  Moreover, the Board notes that the Veteran's service personnel records document that he served two tours of duty in the Republic of Vietnam during his first period of qualifying service.  Furthermore, the Veteran's daughter in an April 2004 statement and brother in a December 2011 statement reported that they were told that the Veteran has sustained an injury while serving in the Republic of Vietnam.  See Davidson.  Accordingly, the Board will concede for the purpose of this decision that he sustained a left shoulder/arm injury during his combat while in the Republic of Vietnam because it is consistent with the nature, circumstances and hardships of this service.  

Similarly, the Board notes that a January 1961 service treatment record from his first period of qualifying service documents the Veteran's fall from a ladder.  Moreover, the Board finds that the Veteran is competent and credible to report that he had problems with left shoulder and arm pain since that fall even though, as in the current appeal, service treatment records are negative for the diagnosis of a left shoulder and/or arm disability at the time of the document 1961 fall or any time thereafter.  See Davidson.

This appeal turns on whether the record contains a competent and credible diagnosis of a left shoulder and/or arm disability due to the above in-service events, other than the already service-connected peripheral neuropathy caused by his diabetes mellitus, at any time during the pendency of his appeal.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.310; McClain; Allen.

In this regard, a November 1970 service treatment record documents the Veteran's treatment for left arm discomfort.  Similarly, a May 1972 service treatment record documented his treatment for a problem with his left index finger and an August 1972 record documented his treatment for a problem with his left hand.

Similarly, at the Veteran's first post-service VA examination, dated in February 1983, he reported a history of a left arm injury.  Similarly, in a December 1983 record from Temple the Veteran complained of left arm pain.  Likewise, VA treatment records, including records dated in January 2001 and August 2010, document the Veteran's complaints of left shoulder and/or arm pain/discomfort with muscle spasms also seen in the August 2010 treatment record.  

On the other hand, service treatment records, including examinations dated in September 1964, September 1967, and June 1971, are negative for a history of a left shoulder or arm injury, symptoms of a left shoulder or arm injury, or a diagnosis of a left shoulder or arm disability.  In fact, at each of the above VA examinations the examiner specifically opined that the Veteran's upper extremities were normal.

Similarly, a February 1983 VA examination report reflects that his left shoulder and arm were normal.  No diagnosis was given.  Instead, the examiner opined that the Veteran had a history of left shoulder and arm sprain.  Similarly, neither the December 1983 record from Temple nor any of the VA treatment records diagnosed the Veteran with a chronic left shoulder or arm disability.

Moreover, at the post-remand VA examination dated in December 2011, which was conducted for the express purpose of ascertaining if the Veteran had a current left shoulder or arm disability due to his military service, it was opined after a review of the record on appeal and an examination of the claimant that his left shoulder and arm were normal. 

The opinions by the September 1964, September 1967, and June 1971 in-service examiners as well as the February 1983 and December 2011 VA examiners, that the Veteran's left arm and shoulder are normal, are not contradicted by any other medical evidence of record.  See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions).

Moreover, while the Veteran, his wife, and his representative as lay persons are competent to report on the claimant's observable symptoms, such as pain and limitation of motion because this requires only personal knowledge as it comes to them through their senses, the Board finds that they are not competent to provide a diagnosis of chronic left shoulder and/or arm disabilities because such an opinion requires medical expertise which they do not have.  See Davidson.  Further, the Court has held that pain alone, without a diagnosed related medical condition, does not constitute a disability for which service connection may be granted.  See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). 

The Board also finds that facts in the current appeal can be distinguished from those in McClain, because the current appeal does not show a medical history in which the claimant's disability resolved during the pendency of the appeal but instead one in which the appellant was never given a competent and credible diagnosis of a disability during the pendency of the appeal.  

Therefore, the Board finds the September 1964, September 1967, and June 1971 in-service examiners opinions as well as the February 1983 and December 2011 VA examiners opinions that the Veteran's left arm and shoulder are normal and therefore he does not have any left shoulder or arm disability, independent from the already service connected peripheral neuropathy caused by his diabetes mellitus, the most competent and credible evidence of record because it reflects both clinical data and other rationale to support their conclusions.  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.").

Accordingly, since a condition precedent for establishing service connection on a direct and secondary basis is the diagnosis of a disability during the pendency of the appeal and the Veteran does not have such a diagnosis, the Board finds that service connection for residuals of left shoulder and arm injuries must be denied on a direct and a secondary basis despite the claimant's status as a Combat veteran, the presumptions found at 38 U.S.C.A. § 1154(b), and the documented fall from a ladder in 1961.  See 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.306, 3.310.  

In reaching the above conclusions, the Board also considered the doctrine of reasonable doubt.  38 U.S.C.A. § 5107(b).  However, as the preponderance of the evidence is against the claim, the doctrine is not for application.  See also, e.g., Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  


ORDER

Service connection for residuals of a left shoulder and arm injury is denied. 

____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs