Citation Nr: 1325217 Decision Date: 08/08/13 Archive Date: 08/13/13 DOCKET NO. 06-27 119 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to service connection for a left shoulder disorder. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Diane M. Donahue, Associate Counsel INTRODUCTION The Veteran had active service from June 1985 to May 1989. This matter came before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The Veteran testified at a hearing before a hearing officer at the RO in January 2007, and a videoconference hearing before the undersigned in July 2009. Transcripts of the hearings are included in the claims file. The issue was previously remanded in December 2009 and April 2011 for additional development to include obtaining a VA medical examination. The Veteran underwent a VA examination in January 2013. The Board finds substantial compliance with the requirements articulated in the Board's prior remand decision. See Stegall v. West, 11 Vet. App. 268 (1998); see D'Aries v. Peake, 22 Vet. App. 97, 104 -05 (2008); Dyment v. West, 13 Vet. App. 141 (1999). Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The preponderance of the evidence is against finding that the Veteran's currently diagnosed left shoulder disability is etiologically related to a disease, injury, or event in service. CONCLUSION OF LAW A left shoulder disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and 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. A VCAA letter dated in November 2004, fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. The letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Furthermore, a March 2006 letter described how appropriate disability ratings and effective dates were assigned. The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records and relevant VA medical records are in the file. The Board finds that all relevant records identified by the Veteran as relating to this claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claims. VA has fulfilled its duty to assist. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). In this case, the Veteran was provided a VA examination in January 2013. The January 2013 examiner considered the Veteran's claims of experiencing symptoms of left shoulder pain while on active duty, as well as the service treatment records, post-service treatment records, and conducting a physical examination. The examiner concluded that the claimed disorder was less likely than not incurred in or caused by the Veteran's service. Therefore, as the opinion was based on review of the claims file, including the Veteran's statements and other material favorable to the Veteran's claim, and provided an extensive rationale for the opinion provided, the Board concludes that the opinion provided is adequate. Given the foregoing, the Board finds the evidence of record to be thorough, complete, and sufficient upon which to base a decision with respect to the Veteran's claim. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As such, the Board finds that the medical evidence of record is sufficient to adjudicate the Veteran's claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). If certain diseases, such as arthritis, become manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. An alternative method of establishing the second and third elements of service connection for those disabilities identified as a "chronic condition" under 38 C.F.R. § 3.309(a) is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran claims he has a left shoulder disorder which started during active service. Factual background Service treatment records include complaints of shoulder pain. In a February 1986, the Veteran reported shoulder pain due to a long standing injury when a board fell on his neck 6-12 months ago. In a September 1986 STR, the Veteran reported he was involved in a motor vehicle accident (MVA). He complained of pain at the left side of his neck and shoulder girdle. He had full range of motion of the left shoulder. The diagnosis was mild strain of the left shoulder. In a July 1987 STR, the Veteran reported left shoulder pain. He denied trauma or increased activity. He denied pain upon palpation to upper left shoulder. He had moderate to severe pain upon abduction with radiating pain to neck upon adduction. The diagnosis was left shoulder strain. During a subsequent July 1987 follow-up, the Veteran reported increased left shoulder pain. The diagnosis was thoracic pain probably secondary to musculoskeletal origin. A July 1987 x-ray report was normal. In a later July 1987 STR, the Veteran reported he fell down stairs on based and injured his lower back, neck, and left shoulder. The diagnosis was lumbar strain. In a STR dated in August 1987, the Veteran complained of an ache in the shoulders to the mid-thoracic region. In an August 2004 VA progress note, the Veteran complained of bilateral shoulder pain. Upon physical examination, the examiner noted full shoulder abduction, adduction, and no limitation of motion. The diagnosis was joint pain, subjective complaints greater than objective findings. During an October 2004 private evaluation, the Veteran complained of right shoulder pain. Upon physical examination, bilateral range of motion was normal, as was strength and tone. During a December 2004 VA examination, the Veteran reported right sided neck and shoulder pain. He exhibited almost full range of motion of the left shoulder, constantly complaining of the right sided pain. In an April 2005 notice of disagreement, the Veteran asserted that he injured his shoulders in service and that he has had pain and weakness in his shoulders since that time. He reported he had a recent re-injury of his right shoulder. In VA progress notes dated in May, June, and 2005, the Veteran reported left shoulder pain. In a physical therapy initial evaluation consultation, the Veteran reported he was in a MVA while in the military, but he was not specific and was a poor historian for incident of pain. He asserted he did not remember correctly, but he knows he was injured. The examiner noted he was in a MVA and had injury with physical training. He re-injured his right shoulder as an installing tech for Time Warner Cable. In an August 2005 VA progress note, the Veteran denied musculoskeletal symptoms other than his neck, right elbow, and feet. Upon physical examination there was no joint swelling, crepitation, or limitation of motion. During a December 2005 private treatment evaluation, the examiner noted normal range of motion of his left upper extremity but also found that his range of motion generates pain with abduction. VA progress notes dated in January and February 2007 also include complaints of bilateral shoulder pain. A January 2007 VA progress note indicated full range of motion, and a February 2007 VA progress note indicated decreased ranges of motion. In an April 2007 private treatment record, the examiner noted that the Veteran was receiving treatment for a neck and right shoulder injury. Upon physical examination, the examiner found the left shoulder appeared normal and he had normal range of motion of his upper extremity, but that range of motion generates pain with abduction. A March 2009 VA progress note indicates the Veteran injured his left hand. Upon examination, the left shoulder was normal with full range of motion. During a March 2010 VA examination, the Veteran asserted that when he was in the military, he fell striking his right shoulder and neck area. He continued to have vague aches and pains referable to the cervical spine area. Upon physical examination, the examiner found forward elevation to 170 degrees, and internal and external rotation to 90 degrees without painful limitation or crepitus. Adduction and extension were normal without painful limitation. The examiner assessed a diagnosis of normal left shoulder. A November 2011 VA examination noted entirely normal examination of the left shoulder with normal full range of motion and without pain throughout the range of motion. A September 2011 addendum indicated that there was no evidence of treatment for the left shoulder and no definitive injury favoring the left shoulder while in the military and no subsequent treatment or evaluation of the left shoulder. The examiner found it was less likely as not that any left shoulder disorder was related to military service. During a January 2013 VA examination, the examiner reviewed the claims file including the Veteran's service treatment records. The Veteran complained of left shoulder pain in the shoulder girdle and problems with repeat motion and lifting. He reported popping and numbing at times, especially when he lifts something. He complained he does not have the strength due to pain but he did not go directly into pain complaints. He described a jabbing pain. Aggravating factors included activities and prolonged stationary positioning. The Veteran reported that he had left shoulder pain when he was in the military, but the examiner noted that the records do not show visits showing this. Upon physical examination, there was no evidence of decreased motion and no objective evidence of painful motion on adduction, or flexion. There was some limited abduction with painful motion at 90 degrees. The Veteran complained of pain on palpation of joints, soft tissue, and biceps tendon of the left shoulder. Muscle strength was normal. Testing of rotator cuff conditions was normal. The examiner found that though the Veteran had a left shoulder strain in the past, there was no definitive diagnosis currently. The Veteran showed significant non-organic signs of pain and also showed inconsistency on range of motion examination compared to his subjective complaints. The examiner was able to observe full range of motion when the Veteran was distracted. X-ray testing revealed minor degenerative joint disease on the acromioclavicular joint (AC) joint. The examination of the AC joint was negative. The examiner opined that the x-ray findings are normal progression for his age. The examiner further opined that although he had a MVA with shoulder involvement, this was minor and did not have significant impact on his military life and life thereafter. The Veteran's records indicate that he visited the hospital often with any minor problems, his shoulders did not come up in any follow-ups. Mostly, his complaints related to intercostal chest pain. Review of the rest of the charts also did not identify any significant shoulder issues that related to military service. His employment history also supports non-shoulder problems. The examiner noted that the examination was inconsistent with the subjective complaints and showed non-organic signs of pain behavior. The examiner found there was no substantive evidence that his current complaints are military service related. Analysis Initially, the Board finds that the Veteran has a current disability in his left shoulder. Specifically, the Board recognizes there was evidence of minor degenerative joint disease on x-ray in January 2013. However, there is no competent evidence that the Veteran's currently diagnosed degenerative joint disease was manifested to a degree of 10 percent or more within one year of his discharge from active service. From the Veteran's June 1989 separation from service until 2004, more than 15 years, there is no medical evidence of complaints or any diagnosis of a left shoulder disorder. Thus, presumptive service connection for degenerative joint disease is not warranted. The Board also considered whether service connection was warranted on a direct basis. However, the only medical etiology evidence of record are the November 2011 and January 2013 VA examination reports, indicating that it is less likely than not that the Veteran's current left shoulder disability is related to service to include an in-service injury. The Veteran has offered no medical opinion which contradicts the VA examiners' findings. The Board recognizes the Veteran's assertions in multiple statements, in which he asserts that he has had left shoulder pain since his injury during active duty service. The Board finds it significant, however, that he specifically denied pain in the left shoulder on evaluation in March 2010 and November 2011. For these reasons, the Board must find the assertions of the Veteran that he began experiencing chronic symptoms in service not credible. In this regard, the Board is mindful of the decision in Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006), wherein the United States Court of Appeals for the Federal Circuit determined that the Board erred by finding that a claimant's report of in-service symptoms lacked credibility solely because there was no objective medical evidence corroborating those symptoms at the time. The instant case, however, is distinguishable from Buchanan in that the Board is not relying solely on the fact that there are no documented complaints regarding a left shoulder disorder for two decades after service. Rather, the Board is relying also on the fact that the Veteran specifically denied a history of upper extremity problems at separation and on the Veteran's own description of pain (or lack thereof) during two VA examinations. Thus, the record in this case does not merely reflect a lack of documentation pertaining to the claimed disability, but instead, it contains an instance in which the Veteran specifically denied having any relevant symptoms. Additionally, he did not describe left shoulder problems since service to treating personnel during the time he was treated for his right shoulder or any other musculoskeletal complaints. The Veteran had every opportunity to discuss the continuity of complaints to treating personnel, but did not do so. Thus, there is affirmative evidence, rather than merely a lack of contemporaneous evidence. Consequently, the Board concludes that the current assertions by the Veteran as to experiencing a continuity of symptomatology since service are not credible. Having found that there is no credible evidence of a continuity of symptomatology since service, the Board finds that the Veteran, as a lay person, is not otherwise competent to link his current left shoulder disorder to either his in-service injury or the symptoms he experienced in service. In summary, considering the medical evidence of record, and the Veteran's testimony, and all evidence of record, the Board finds that the preponderance of the evidence of record is against a grant of service connection for a left shoulder disability. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); See Gilbert, 1 Vet. App. 49. ORDER Entitlement to service connection for a left shoulder disorder is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs