Citation Nr: 1325755 Decision Date: 08/14/13 Archive Date: 08/16/13 DOCKET NO. 10-17 713 ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Fargo, North Dakota THE ISSUE Entitlement to service connection for a right shoulder disability, to include symptoms involving the neck and back. REPRESENTATION Appellant represented by: Minnesota Department of Veterans Affairs ATTORNEY FOR THE BOARD McBrine, M., Counsel INTRODUCTION The Veteran served on active duty November 1970 to December 1971. This matter comes before the Board of Veterans' Appeals (Board) from a June 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) Center in Fargo, North Dakota. This issue was reopened in August 2011 and remanded for further development, and now returns again before the Board. This issue was remanded for further development again in March 2013, and now returns again before the Board. As the Board observed in the August 2011 Remand, the May 2009 claim notes "shoulder conditions" and an April 2009 private record attributes myofascial symptoms in the shoulders to a compression fracture at T12, for which service connection is herein granted. Thus, the issue of entitlement to service connection for a left shoulder disorder is referred to the AOJ for appropriate action. FINDINGS OF FACT The preponderance of the evidence is against a finding that the Veteran has a right shoulder disability etiologically related to a disease, injury, or event in service, or secondary to any service connected disability. CONCLUSION OF LAW A right shoulder disability was not incurred in or aggravated by service, nor may it be presumed to be so incurred, nor is it secondary to any service connected disability. 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, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS 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, all the 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). Stegall Considerations As noted above, the Board last remanded this claim in March 2013 for further development, specifically for a VA examination with opinion to adequately address the etiology of the disability on appeal. Such examination was held in April 2013, and an adequate opinion was rendered, and the claim was readjudicated in an April 2013 Supplemental Statement of the Case. Thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). 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. 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 the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran 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); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran 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 Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in August 2011, September 2011, June 2012, and July 2012 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). The Veteran was advised that it was ultimately his responsibility to give VA any evidence pertaining to the claims. These documents informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order to ensure that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veterans Service Organization (VSO) and has submitted argument in support of his claims. These arguments have referenced the applicable laws and regulations. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a further remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (noting that remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes that VA's duty to assist has been satisfied. The Veteran's service treatment records and relevant VA medical records are in the file. All records identified by the Veteran as relating to the claims have been obtained, to the extent possible. The Board finds that the record contains sufficient evidence to make a decision on the claims. 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 Board notes that the Veteran was provided with VA examinations in October 2011 and April 2013. These examinations, together with the remainder of the evidence of record, address the etiology of the Veteran's current right shoulder disability contain sufficient information to render a decision in this appeal. 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). Legal Criteria The Veteran contends that he injured his right shoulder in Vietnam, or in the alternative, that his right shoulder condition is secondary to a service connected disability. Specifically, the Veteran has stated that, during service in Vietnam, he and his "mobile pay team" regularly traveled by helicopter and/or truck to disburse the cash payroll. He added that, typically, the helicopter did not land, and therefore, while holding a 100-pound metal currency container in one hand and a weapon in the other, he would jump out from a distance of about 3 to 4 feet, and "bounce" upon landing in order to keep his balance. He added that his right shoulder would, at times, hit the door frame of the helicopter on the way out. He also has reported at times that he would sling the currency container over his right shoulder, which would cause pain in that shoulder. The Veteran thus specifically contends that he either injured his right shoulder in service by carrying a heavy currency container, or that his right shoulder diagnosis is secondary to the service connected compression fracture of T12. 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). Service connection may also be established for disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet.App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Jandreau v. Nicholson, supra (concerning a dislocated shoulder). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet.App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). 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(b) (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Analysis Taking into account all relevant evidence of record, the Board finds that service connection is not warranted for a right shoulder disability. In this regard, the Board finds that the preponderance of the medical evidence of record indicates that the Veteran's current right shoulder disability was not incurred in or aggravated by service, nor is it secondary to any service connected disability. Reviewing the relevant evidence of record, the Veteran's service medical records show no complaints of, treatment for, or diagnosis of, any shoulder disability. There is no evidence of record showing any complaints of, or diagnosis of, any shoulder disability until 1987, 16 years after the Veteran's separation from service. Medical records show that the Veteran underwent arthroscopic subacrominal decompression of the left shoulder in December 1987, and had physical therapy treatments after that surgery. Sporadic outpatient treatment records since that time show occasional treatment for complaints of shoulder pain. The Board notes that often however, these records indicate treatment for his left shoulder. Of particular note is a January 2008 private report of treatment. It indicates that the Veteran fell on ice and contused his head, and then had a muscle strain in his neck, shoulders, and abdomen. At that time it was noted that he had a history of myofascial syndrome in the neck and shoulders that had bothered him for about a year, finally resolving with physical therapy, massage, and medication. The Veteran was also noted to have a diagnosis of fibromyalgia which affected his neck and shoulder muscles. The Veteran was diagnosed with muscle strain of the neck and shoulders. An April 2009 letter from a private physician is of record. The physician indicated he had been treating the Veteran for the past few years, and had reviewed his records back to 1972. He indicated that it was more likely than not that the Veteran's current back problems, as well as the myofascial symptoms he is experiencing in his upper back, neck, and shoulders are the direct result of his compression fracture sustained during his military service. However, since the examiner did not offer any reasons or bases in support of his decision, and did not address such relevant evidence of record as the Veteran's 1987 shoulder surgery, the Board finds this opinion to be of diminished probative value. The Veteran was afforded a VA examination in October 2011. Range of motion testing showed some impairment of range of motion, as well as pain on ranges of motion. At that time, the Veteran was diagnosed with impingement syndrome of the right shoulder. After a thorough review of the Veteran's claims file and a thorough examination of the Veteran, the examiner concluded that the Veteran's right shoulder condition was less likely than not related to his service connected T12 vertebral fracture, stating that there was no evidence in the Veteran's claims file that the Veteran was treated in service for any significant right shoulder pathology, and the only available evidence of right shoulder surgery was in 1987, well after the Veteran's separation from service. The Veteran was most recently afforded a VA examination in April 2013. On examination, right shoulder range of motion was flexion and abduction both to 110 degrees, and with pain on end ranges of motion. Repetitive testing showed an increase in pathology. Muscle strength testing showed slightly decreased muscle strength in the right shoulder. X-rays showed arthritis in the right shoulder. After a thorough examination of the Veteran and a thorough review of the claims file, the Veteran was diagnosed with mild degeneration of the right shoulder joint. The examiner opined that the Veteran's right shoulder degeneration was not likely related to his service connected compression fracture at T12, nor was it aggravated beyond its normal progression by the Veteran's service connected T12 compression fracture. In support of this condition, the examiner noted that here was no evidence in the Veteran's service treatment records, or in the immediate timeframe after his discharge for any trauma or condition diagnosed for his right shoulder. The Veteran stated that he injured his right shoulder during a parachute jump in service; however, there is no report in his service treatment records of any right shoulder injury in service. Moreover, the examiner pointed out that the location of the service-connected T12 vertebral fracture is not anatomically proximate to his right shoulder, and therefore should not have any pathological or etiological association with his right shoulder joint degeneration. Therefore, the examiner opined that the Veteran's right shoulder condition is not secondary to his T12 vertebral fracture. The examiner further noted that the Veteran's separation physical does not indicate any abnormality or complaints in regards to his right shoulder. Medical records from a private clinic dated January 2008 were noted, in which the Veteran reported a whiplash injury and a contusion to his head, resulting in a muscle strain to his neck and shoulders and abdomen, and a history of fibromyalgia and myofascial syndrome in the neck and shoulders that had bothered him for a year. In regards to the Veteran's claim of aggravation, the examiner observed that there was no preexisting right shoulder condition, and therefore, his T12 fracture cannot contribute to aggravating his right shoulder condition, as it was nonexistent at that time. In Board assigns high probative value to the 2013 medical opinion as the examiner obtained a history from the Veteran, reviewed the claims file, and conducted a complete examination. There was no indication that the examiner was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. The Board thus finds the examiners' opinions to be of greater probative value than the April 2009 medical opinion. Moreover, the length of time between his separation from active service and his first complaints weighs against granting the claim on a direct basis. Thus, the Board finds that the preponderance of the medical evidence of record is against a grant of service connection for this disability. In reaching this conclusion, the Board has considered the Veteran's lay statements regarding the etiology of his shoulder disability. In this regard, the Board acknowledges that the Veteran is certainly competent to testify, as he has, as to the nature of his symptoms and their approximate date of onset, such as pain in his shoulder. However, the Board finds that the question of whether the Veteran's current symptoms are related to service and specifically his service connected back disability, requires medical expertise outside the scope of the Veteran's medical knowledge. As noted above, the Board has placed great probative weight on the April 2013 VA opinion which was rendered by a medical professional after reviewing the entire evidentiary record and lay statements from the Veteran. Thus, the Veteran's lay statements regarding etiology are outweighed by the competent medical opinion rendered in April 2003. In summary, considering the medical evidence of record, the Veteran's statements, 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 right shoulder disability. As the preponderance of the evidence is against this 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 right shoulder disability, to include symptoms involving the neck and back, is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs