Citation Nr: 1325746	
Decision Date: 08/14/13    Archive Date: 08/16/13

DOCKET NO.  06-32 801	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to service connection for right upper extremity arthritis (to include right shoulder arthritis), to include as secondary to service-connected retained foreign bodies and a scar of the right forearm.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

B. Elwood, Associate Counsel
INTRODUCTION

The Veteran served on active duty from September 1963 to September 1966 and from August 1967 to April 1972, which includes service in the Republic of Vietnam.  He received the Combat Infantryman's Badge and Purple Heart Medal.

This matter initially came before the Board of Veterans' Appeals (Board) from a July 1999 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia.  In that decision, the RO denied entitlement to service connection for right upper extremity arthritis.  

The Veteran testified before the undersigned at an August 2009 hearing in Washington, DC.  A transcript of that hearing has been associated with his claims file.

In January 2010 and April 2012, the Board remanded this matter for further development.

In addition to the paper claims file, there is a Virtual VA paperless claims file associated with the Veteran's claim.  The documents in this file have been reviewed and considered as part of this appeal.


FINDING OF FACT

Right upper extremity arthritis did not have its clinical onset in service, was not exhibited within the first post service year, is not otherwise related to active duty, and is not etiologically related to a service-connected disability.


CONCLUSION OF LAW

Right upper extremity arthritis was not incurred or aggravated in service, it may not be presumed to have been incurred therein, and it is not proximately due to, the result of, or aggravated by a service-connected disability.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113(b), 1154(b), 5107(b) (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307(a), 3.309(a), 3.310 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012) redefined VA's duty to assist the Veteran in the development of a claim.  VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

Under the VCAA, 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim.  Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).

The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 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 (2006).

In letters dated in February 2001 and October 2006, the RO notified the Veteran of the evidence needed to substantiate his claim of service connection for right upper extremity arthritis on a direct basis.  These letters also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).

The claimant's Veteran status has been substantiated.  He was notified of all other elements of the Dingess notice, including the disability rating and effective date elements of his claim, in a May 2008 letter.  

There was a timing deficiency in that the February 2001, October 2006, and May 2008 letters were sent after the initial adjudication of the Veteran's claim.  This timing deficiency was cured by readjudication of the claim in a March 2002 rating decision and an April 2009 supplemental statement of the case.  Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  

The Veteran did not receive any pre-adjudication notice of the evidence needed to substantiate his claim of service connection for right upper extremity arthritis on a secondary basis.  He was notified of some of this information in a June 2003 statement of the case (i.e. the evidence necessary to establish service connection on a secondary basis by way of causation by a service-connected disability).  Such a post-decisional document could not serve to provide legally compliant VCAA notice.  Mayfield v. Nicholson, 444 F.4d 1328 (2006).  It should, however, have served to put the Veteran on notice as to what evidence was required and he had years within which to submit additional evidence and argument.

To the extent that the Veteran was not provided with proper notice of some of the information required by the VCAA, prejudicial error occurs in the context of VCAA notice only when such error affects "the essential fairness of an adjudication" or "has the natural effect of producing prejudice."  Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007).  Appellants must generally identify "with considerable specificity": (1) how the VCAA notice was defective and (2) how the lack of notice and evidence was prejudicial or affected the essential fairness of the adjudication.  Id.  See also Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (holding that a party alleging defective VCAA notice has the burden of showing how the defective notice was harmful).

No such showing of prejudice has been made in this case.  The Veteran received actual notice of the evidence necessary to establish service connection on a secondary basis by way of causation by a service-connected disability in the June 2003 statement of the case.  Also, he demonstrated actual knowledge of the evidence necessary to establish service connection on a secondary basis by way of aggravation by a service-connected disability in that he provided testimony during the August 2009 hearing as to why he believed that his non service-connected right upper extremity arthritis had been aggravated by his service-connected retained foreign bodies and a scar of the right forearm.

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim.  38 U.S.C.A. § 5103A; 38 C.F.R. 
§ 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim.  38 C.F.R. § 3.159(c)(4).  

The Court has held that the provisions of 38 C.F.R. § 3.103(c)(2) (2012) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam).

At the Veteran's August 2009 hearing, the undersigned identified the issues on appeal at that time (including entitlement to service connection for right upper extremity arthritis) and asked the Veteran about the symptoms and history of his right upper extremity disability as well as the treatment received for the disability.  Further, the Veteran provided testimony as to the symptoms and history of his right upper extremity disability and the treatment provided for the disability, and he has submitted additional evidence throughout the claim period.  Thus, he has demonstrated actual knowledge of the ability to identify and submit additional relevant evidence.  The duties imposed by Bryant were thereby met.

VA obtained the Veteran's service treatment records, pertinent service personnel records, and all of the identified relevant post-service VA treatment records and private medical records.  In addition, the Veteran was afforded VA examinations to assess the nature and etiology of his right upper extremity arthritis and opinions have been obtained concerning the etiology of the disability.  

In its January 2010 and April 2012 remands, the Board instructed the agency of original jurisdiction (AOJ) to, among other things: obtain all relevant VA treatment records from the VA Medical Center in Atlanta, Georgia (VAMC Atlanta) dated since January 2005, afford the Veteran a VA examination to assess the nature and etiology of any current right upper extremity disability other than retained foreign bodies and a scar of the right forearm, and obtain opinions as to the etiology of any such disability.  As explained above, all relevant post-service VA treatment records have been obtained and associated with the Veteran's claims file (including records from VAMC Atlanta dated since January 2005).  Also, he was afforded a VA examination in April 2010 and opinions have been obtained as to the etiology of his current right upper extremity arthritis.

Thus, the AOJ substantially complied with all of the Board's relevant January 2010 and April 2012 remand instructions and VA has no further duty to attempt to obtain any additional records or conduct additional examinations with respect to the claim being decided herein.  See Dyment v. West, 13 Vet. App. 141, 146- 47 (1999); Stegall v. West, 11 Vet. App. 268 (1998).

Analysis

Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.

Establishing service connection generally requires (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 present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303.

Service connection is also provided for a disability which is proximately due to, the result of, or aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310.  VA has amended 38 C.F.R. § 3.310 to reflect that it will not concede aggravation unless certain additional conditions are met.  38 C.F.R. § 3.310(b).  As explained below, the Board finds that there is no competent evidence that a service-connected disability caused or aggravated the Veteran's current right upper extremity arthritis.  Hence, it is not necessary to determine which version of 38 C.F.R. § 3.310 is applicable in this case.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element for certain chronic disabilities listed in 38 C.F.R. § 3.309(a), including arthritis, is through a demonstration of continuity of symptomatology.  See Clyburn v. West, 12 Vet. App. 296, 302 (1999).  Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology.  See Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303(b), 3.309(a).

In relevant part, 38 U.S.C.A. § 1154(a) (West 2002) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits.  Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a 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."  Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence").

"Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology."  Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)).  Once evidence is determined to be competent, the Board must determine whether such evidence is also credible.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted")).

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).  

Additionally, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if such manifested to a compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a), 3.309(a).

Notwithstanding the foregoing presumption, a claimant is not precluded from establishing service connection with proof of direct causation.  38 U.S.C.A. § 1113(b); Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

In this case, an April 2010 VA examination report includes a diagnosis of degenerative joint disease of the right shoulder.  Thus, current right upper extremity arthritis has been demonstrated.
The Veteran contends that his current right upper extremity arthritis is related to right upper extremity injuries that he sustained while participating in combat in service in October 1965.  Also, he has reported that he participated in multiple parachute jumps in service while carrying heavy ammunition and supplies on his back and he claims that the right upper extremity arthritis is related to such parachute jumps.  Additionally, he claimed in a December 2011 statement (VA Form 21-4138) that he "re-injured" his right shoulder in a motorcycle accident in August 1966.  During the August 2009 hearing, his representative asked him whether he had experienced right shoulder pain ever since service and he acknowledged such pain.  Thus, he appears to have alluded to a continuity of right shoulder symptomatology in the years since service. 

In the alternative, the Veteran contends that the right upper extremity arthritis is related to his service-connected retained foreign bodies and a scar of the right forearm.

The evidence reflects that the Veteran was engaged in combat while in service in Vietnam.  For example, he received both the Combat Infantryman's Badge and Purple Heart Medal.  Also, service personnel records confirm that he received basic airborne training, that his military occupational specialties included being a parachutist, and that he received the Parachute Badge.  In-service right shoulder symptoms, such as those described by the Veteran, could be consistent with the circumstances of his service.

Where a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships of service.  38 U.S.C.A. § 1154(b).  Section 1154(b) sets forth a three step sequential analysis that must be undertaken when a combat veteran seeks benefits under the method of proof provided by the statute.  First, it must be determined whether the veteran has proffered "satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease."  Second, it must be determined whether the proffered evidence is "consistent with the circumstances, conditions, or hardships of such service."  Finally, if the first two requirements are met, VA shall accept the veteran's evidence as "sufficient proof of service connection," even if no official record of such incurrence exists.  In such a case, a factual presumption arises that the alleged injury or disease is service-connected.  Collette v. Brown, 82 F.3d 389, 393 (Fed. Cir. 1996); 38 C.F.R. § 3.304.

However, the presumptions of 38 U.S.C.A. § 1154(b) do not extend to the nexus element of a claim of service connection.  Wade v. West, 11 Vet. App. 302 (1998); Turpen v. Gober, 10 Vet. App. 536 (1997).

Regardless of the fact that the Veteran engaged in combat during service and even assuming that he engaged in multiple parachute jumps in service and experienced right shoulder injury and symptoms in service, the claim must nevertheless be denied, as explained below.  

With regard to the remaining element of the claim of service connection for right upper extremity arthritis (i.e. the nexus element), the Veteran's reports must be weighed against the objective evidence and their credibility must be assessed.  See Jandreau, 492 F.3d at 1377; Buchanan, 451 F.3d at 1337.

Service treatment records include an October 1965 record of treatment for a fragment wound of the right lower arm (ulnar aspect).  Examination revealed that sensation and other neurologic findings were intact and that there was a good radial pulse.  X-rays of the right arm revealed that there was no fracture.  The wound was cleaned and dressed and the Veteran was discharged with a sling.  The Veteran was also treated for abrasions to the right hand and arm following a motorcycle accident in August 1966.  However, there is no evidence of any complaints of or treatment for right shoulder problems in his service treatment records and his June 1966 and April 1972 separation examinations were normal other than for right lower arm scars.

If a chronic disease, such as arthritis, is shown in service and at any time thereafter, service connection will be conceded.  38 C.F.R. § 3.303(b).  There must, however, be sufficient observations in service to identify the disease entity.  Id.  As discussed above, there is no evidence showing any diagnosed right upper extremity arthritis in service and the Veteran has not contended that such arthritis existed in service. Hence, service connection cannot be granted on this basis here.

The objective evidence otherwise indicates that the Veteran's current right shoulder arthritis did not manifest until many years after service.  The earliest post-service clinical evidence of a possible right shoulder disability is a December 1983 examination report from Southeastern Health Services, Inc. which includes a report of episodic numbness of the right shoulder, arm, and fingers.  The Veteran also reported that he had experienced some episodes of right shoulder aching, but that the problem had not recurred.  Examination of the right shoulder revealed that sensation to light touch, pinprick, and vibration was normal, that the shoulder had full range of motion, and that there was full strength.  The deltoid muscles also exhibited normal strength.  The Veteran was diagnosed as having numbness secondary to positional sleeping.  

There is no clinical evidence of any earlier right shoulder problems following service.  The absence of any clinical evidence of right shoulder symptoms for over a decade after the Veteran's separation from service in April 1972 weighs against a finding that his current right upper extremity arthritis was present in service or in the year or years immediately after service.  

The Veteran has provided varying statements as to the history of his right shoulder symptoms.  For example, during the August 2009 hearing he alluded to the fact that his right shoulder pain had persisted ever since his right upper extremity injury in October 1965.   However, reports of medical history forms dated in June 1966 and October 1968 that were completed for purposes of separation from service and a ranger examination, respectively, indicate that he reported that he was not experiencing, nor had he ever experienced, any "swollen or painful joints," "arthritis or rheumatism," bone, joint, or other deformity," or "painful or trick shoulder." 

In light of the absence of any objective evidence of complaints of or treatment for right shoulder problems during service, the fact that the Veteran's June 1966 and April 1972 separation examinations did not reveal any right shoulder abnormalities, the absence of any clinical evidence of right shoulder symptoms for over a decade following service, and the Veteran's inconsistent statements concerning the history of his right shoulder symptoms, the Board concludes that his reports concerning the history of his right shoulder arthritis, including any report of a continuity of symptomatology since service, are not credible.  Thus, neither the clinical record nor the lay statements of record establish a continuity of symptomatology in this case, precluding an award of service connection on this basis.

There is conflicting medical evidence as to the etiology of the Veteran's current right upper extremity arthritis.  The Board, therefore, must weigh the credibility and probative value of this evidence, and in so doing, may favor one medical opinion over the other.  See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)).  The Board must account for the evidence it finds persuasive or unpersuasive and provide reasons for rejecting material evidence favorable to the claim.  See Gabrielson v. Brown, 7 Vet. App. 36, 29-40 (1994).

The physician who conducted the April 2010 VA examination diagnosed the Veteran as having degenerative joint disease of the right shoulder and limited range of motion "from a motorcycle accident that occurred during [his] military service."  Although he explained that the Veteran had a motorcycle accident in service in which he injured his shoulder, that his shoulder showed limited range of motion, that he was in pain, and that his shoulder problems limited his activities, the examiner did not provide any specific explanation or reasoning for his opinion.

The April 2010 examiner then opined that the Veteran's right upper extremity arthritis was not likely ("less likely as not") proximately due to or aggravated by the service-connected residuals of a shell fragment wound to the right forearm.  He reasoned that the Veteran did not injure his shoulder due to shell fragment wounds to the right forearm.  Rather, he injured his shoulder "years later in a motorcycle accident."

In light of the inconsistencies between the rationale provided by the April 2010 examiner and the evidence in the Veteran's service treatment records (including the fact that there was no evidence of any right shoulder injury at the time of the August 1966 motorcycle accident), the examiner who conducted the April 2010 VA examination re-reviewed the Veteran's claims file in April 2012.  He opined that the Veteran's current right shoulder disability was not likely ("less likely than not"/"less than 50 percent probability") incurred in or caused by service.  He reasoned that the Veteran had a motorcycle accident in 1966, but that there was no surgery, abnormal X-rays, profile, or ongoing treatment or disability of the right shoulder during the remainder of his military service.  An X-ray conducted in 1999 did not show any arthritis, and X-ray evidence of arthritis was not present until years after service in 2002.

The examiner also reasoned that the Veteran reportedly had a left deltoid grenade fragment without any visible wound or current inflammation or induration.  The area was healed and there were no fragments seen on X-ray.  The Veteran had a normal X-ray in 1999, followed by an abnormal examination years later in 2002.  Thus, his right forearm and left upper extremity wounds were too distant to have affected his right shoulder or to cause arthritis of the shoulder.

In March 2013, the Board sought to obtain an expert medical opinion through the Veterans Health Administration (VHA opinion) in accordance with the provisions of 38 C.F.R. § 20.901(a) (2012).  In May 2013, a VA physician extensively reviewed the Veteran's claims file and opined that it was not likely ("less likely as not") that any current right shoulder disability had its clinical onset in service , including due to a right arm fragment wound, a motorcycle accident, or multiple parachute jumps while carrying heavy ammunition.  The physician also opined that it was not likely ("less likely as not") that any current right shoulder disability was caused or aggravated by the Veteran's service-connected residuals of a shell fragment wound to the right forearm.

The VA physician explained that arthritis is inflammation of a joint and that the word itself most typically refers to osteoarthritis or degenerative arthritis.  While there may be some suspected hereditary predisposition, degenerative arthritis develops from aging or from an accident or injury.  This includes activities of daily living, where the joints are overstressed or overused.  However, there is no method to quantify how much stress or overuse a joint needs to sustain in order to develop arthritis.  The anatomy of the joint consists of smooth, glistening, articular hyaline cartilage that covers the ends of the bones, as well as ligaments that hold the joint together, stabilize the joint, and help to define the motion of the joint.  Articular cartilage does not heal when injured and does not regenerate.

During the aging process, damage to the articular cartilage occurs slowly over time.  The cartilage increases its water content and loses some of its protein.  Thus, it can no longer support normal loads and it becomes injured and flakes off or becomes soft.  This starts a "wear and tear" cycle where the joint continues to degenerate and become painful as the articular cartilage becomes more and more irregular.  Without a smooth surface, the joint reactive forces on the ends of the bones are increased and the body makes additional bone around the joints in a futile attempt to make things better.  It is this new bone that is seen on X-rays that is read as "arthritis."  Also, the loss of articular cartilage on the ends of the bones can be seen on X-rays as "narrowing" of the joint because the bones of the joint appear to come closer together (articular cartilage does not show up on an X-ray).

Accidents may directly contribute to the development of arthritis in that if the ligaments holding a joint together are torn, the joint may become unstable.  This subjects the joint to abnormal forces that the articular cartilage cannot support.  The cartilage then becomes physically damaged due to the excess load and the joint degenerates.  Alternatively, an accident may physically injure the articular cartilage or the underlying supporting bone, either from compressive loads or a fracture.  If this injury heals with the slightest disruption of the perfectly smooth surface of the joint, a mechanical process occurs that grinds away the joint with every motion and further damages the articular cartilage.

The physician further reasoned that in order for arthritis to likely ("more likely than not") be related to service, the Veteran's record must indicate some direct and specific injury to a joint (and specifically, the ligaments, bones, or cartilage of a joint).  In this case, the Veteran was quite physically active and had multiple tours of duty.  He made several parachute jumps with heavy packs, was physically fit and prepared for service, was injured during battle, and had received many citations and awards.  In order for service connection to be established for a disability, however, it must be shown that the disability developed during service or that it is directly or indirectly related, incurred, or aggravated as a primary or secondary impairment in the line of duty.  Arthritis does not develop immediately from a joint injury. Nevertheless, there must be an indication that the involved joint was or could have been specifically damaged at some time during service, rather than just affected by general wear and tear and activities of daily living.  Physical activity in and of itself, no matter how intense, is not specifically related to the development of arthritis of any particular joint without injury to that joint.

Additionally shrapnel wounds are not specifically related to the development of arthritis.  In order for arthritis to be related to wounds and scars from shrapnel, the shrapnel must have entered and damaged the joint.  There was no indication or suggestion in the Veteran's medical records that shrapnel was located anywhere other than his soft tissue.  Soft tissue injuries of this nature are not directly or indirectly related, incurred, or aggravated as primarily or secondarily associated with arthritis because the joint has never been violated.

Moreover, a review of the Veteran's medical records indicated that his shoulder complaints did not begin until approximately July 1999, at which time X-rays of the shoulders were normal.  There was no suggestion of any shoulder injury prior to 1999 and there were multiple entries indicating that the musculoskeletal system was normal during various medical examinations prior to 1999.  Subsequent to a July 1999 examination, the Veteran developed shoulder popping and bilateral carpal tunnel syndrome affecting both upper extremities.  The first X-ray evidence of any arthritis in his body was when he was 55 years of age.  Such arthritis involved his back and not his shoulder.  There was no X-ray evidence to suggest the presence of significant joint changes which would be expected of a service-connected injury during the time between the Veteran's discharge from service in 1972 and his shoulder complaints in 2002 (at which time X-rays revealed shoulder arthritis).  

Thus, the physician concluded with a reasonable degree of medical certainty that the arthritic changes noted on X-rays and MRI reports (which were mostly mild or minimal in description) were age related and due to the normal wear and tear activities of daily living.  They were not related to any specific or time-related trauma and certainly could not be directly or secondarily attributed to the general trauma of being in service or being a paratrooper.  Overall, a link could not be established between the arthritis and the Veteran's service.

The April 2010 opinion that the Veteran's degenerative joint disease of the right shoulder and limited range of motion was due to a motorcycle accident in service is of minimal probative value because it is not accompanied by any specific explanation or reasoning.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed).

The probative value of the April 2010 opinion concerning whether a relationship existed between the Veteran's right upper extremity arthritis and his service-connected residuals of a shell fragment wound to the right forearm is also limited because the rationale that was provided pertained to why the disability was not related to the shell fragment injury sustained in service and did not explain why the right upper extremity arthritis was not caused or aggravated by the subsequently service-connected residuals of a shell fragment wound to the right forearm.  

The Board acknowledges that the physician who provided the March 2013 opinion stated that the Veteran's shoulder complaints did not begin until approximately July 1999.  As explained above, however, the Veteran reported episodic numbness of the right shoulder, arm, and fingers as well as right shoulder aching during the December 1983 examination at Southeastern Health Services, Inc.  Nevertheless, the March 2013 physician specifically acknowledged the December 1983 complaints as part of his review of the Veteran's claims file.  Also, the symptoms at that time were attributed to positional sleeping (as opposed to a shoulder disability) and an examination of the shoulder revealed normal findings.  The fact remains that there is no evidence of any specific right shoulder complaints (other than complaints related to positional sleeping) prior to 1999.  

The April 2012 and March 2013 opinions were both based upon a review of the Veteran's medical records and reported history and are accompanied by detailed rationales that are not inconsistent with the evidence of record.  Thus, these opinions are adequate and entitled to substantial probative weight.  See Id.

The Veteran has expressed his belief that his current right upper extremity arthritis is related to the shell fragment wound in service, a motorcycle accident in service, parachute jumps in service, and/or the service-connected retained foreign bodies and a scar of the right forearm.  However, as a lay person, he can only comment as to symptoms and immediately-observable relationships.  He lacks the expertise in this case, not involving such an immediately observable cause-and-effect relationship, to conclude that his current right upper extremity arthritis is related to any specific injury in service or a service-connected disability, as opposed to some other cause.  Rather, it would require medical expertise to evaluate the disability, consider all the potential causes, and determine that one was a more likely cause than another.  Hence, the Veteran's opinion on this question is not competent evidence.  38 C.F.R. § 3.159(a)(1), (2) (2012).

There is no other evidence of a relationship between the Veteran's current right upper extremity arthritis and service or a service-connected disability, and neither the Veteran nor his representative have alluded to the existence of any such evidence.  Also, as discussed above, the record fails to demonstrate any credible evidence of a continuity of symptomatology.  Thus, the preponderance of the evidence is against a finding that the Veteran's current right upper extremity arthritis is related to service, manifested in service, manifested within a year after his September 1966 or April 1972 separations from service, or was caused or aggravated by a service-connected disability.

For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim.  The benefit-of-the-doubt doctrine is therefore not for application in this case and the claim of service connection for right upper extremity arthritis must be denied.  See 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. at 55-57.



ORDER

Entitlement to service connection for right upper extremity arthritis is denied.



____________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs