Citation Nr: 1326038 Decision Date: 08/16/13 Archive Date: 08/26/13 DOCKET NO. 09-11 265 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a left shoulder disorder. 2. Entitlement to service connection for a right shoulder disorder. 3. Entitlement to service connection for a right hip disorder. 4. Entitlement to a rating in excess of 20 percent for diabetes mellitus with erectile dysfunction and cataracts, prior to March 25, 2009. 5. Entitlement to a rating in excess of 40 percent for diabetes mellitus with erectile dysfunction and cataracts, effective March 25, 2009. 6. Entitlement to a compensable rating for a hearing loss disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Harold A. Beach, Counsel INTRODUCTION The Veteran served on active duty from July 1958 to June 1979. He had service in the Republic of Vietnam from August 1965 to August 1966; February 1968 to July 1968; and from June 1969 to June 1970. His awards and decorations included the Airborne Qualification (Parachutist) Badge. This matter came to the Board of Veterans' Appeals (Board) on appeal from an March 2007 rating decision by the RO. Further development of the evidence is warranted with respect to the issues of entitlement to an increased rating for diabetes mellitus with cataracts and erectile dysfunction and entitlement to a compensable rating for a hearing loss disability. Therefore, those issues are addressed in the REMAND portion of the decision below. FINDINGS OF FACT 1. The Veteran's left shoulder disorder, diagnosed primarily as rotator cuff tendonitis and degenerative changes, was first manifested many years after service, and the preponderance of the evidence is against a finding that it is in any way related thereto. 2. The Veteran's right shoulder disorder, diagnosed primarily as rotator cuff tendonitis and degenerative changes, was first manifested many years after service, and the preponderance of the evidence is against a finding that it is in any way related thereto. 3. The presence of a chronic, identifiable right hip disorder has not been established. CONCLUSIONS OF LAW 1. A left shoulder disorder, diagnosed primarily as rotator cuff tendonitis and degenerative changes, is not the result of disease or injury incurred in or aggravated by service, nor may degenerative changes be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). 2. A right shoulder disorder, diagnosed primarily as rotator cuff tendonitis and degenerative changes, is not the result of disease or injury incurred in or aggravated by service, nor may degenerative changes be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). 3. The claimed right hip disorder is not the result of disease or injury incurred in or aggravated by service 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist Prior to consideration of the merits of the Veteran's appeal, the Board must determine whether VA has met its statutory duty to assist him in the development of the issues now decided. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. After reviewing the record, the Board finds that VA has met that duty. In May 2006, VA received the Veteran's claims, and there is no issue as to providing an appropriate application form or completeness of the application. Following the receipt of that application, VA notified the Veteran of the information and evidence necessary to substantiate and complete his claims, including the evidence to be provided by him, and notice of the evidence VA would attempt to obtain. VA informed him of the criteria to establish service connection as well as that for rating service-connected disabilities and for assigning effective dates, should service connection be granted. 38 U.S.C.A. § 5103(a). Following the notice to the Veteran, VA fulfilled its duty to assist him in obtaining identified and available evidence necessary to substantiate his claims. VA obtained or ensured the presence of the Veteran's service treatment and personnel records; records and reports reflecting the Veteran's treatment by or through L.A. L., M.D., from March 2000 through August 2002; records and reports reflecting the Veteran's treatment by or through R.L.S., M.D., from November 2002 through September 2007; records reflecting his treatment by or through VA from June 2005 through July 2009; and records and reports reflecting the Veteran's treatment at the Life Care Center in August and September 2005. In December 2006 and January 2009, VA examined the Veteran to determine the nature and etiology of any shoulder or right hip disorder found to be present. The VA examination reports show that the examiners reviewed the Veteran's medical history, interviewed and examined the Veteran, documented his medical conditions, and rendered diagnoses and opinions consistent with the remainder of the evidence of record. Therefore, the Board concludes that the VA examinations are factually informed, performed by qualified medical care professionals and responsive to VA's inquiry. See 38 C.F.R. § 4.2 (2012); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Finally, VA offered the Veteran an opportunity to present additional evidence and argument at a hearing on appeal. However, in February 2009, he declined that offer. In sum, with respect to his claims for service connection for shoulder and right hip disorders, the Veteran has been afforded a meaningful opportunity to participate in the development of his appeal. He has not identified any outstanding evidence which could support any of those claims; and there is no evidence of any VA error in notifying or assisting the Veteran that could result in prejudice to him or that could otherwise affect the essential fairness of the adjudication. Accordingly, the Board will proceed to the merits of the appeal. The Merits of the Appeal Initially, the Board will discuss the relevant law it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published at Title 38 of the Code of Federal Regulations ("38 C.F.R."); and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999); Gilbert v. Derwinski, 1 Vet. App. 49 (1990) (Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction; the Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Generally, for a grant of service connection, the evidence must show (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during active service. See Cuevas v. Principi, 3 Vet. App. 542 (1992). For certain disabilities, such as arthritis, service connection may be presumed when such disability is shown to a degree of 10 percent or more within one year of the veteran's discharge from active duty. 38 U.S.C.A. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Such a presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. § 1113; 38 C.F.R. § 3.307. Apart from the foregoing law and regulations, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) . The Veteran contends that his shoulder and right hip disorders are the result of injuries sustained during multiple parachute landing falls in service. Therefore, he maintains that service connection is warranted on a direct basis. After carefully considering the claim in light of the record and the applicable law, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for a left or right shoulder disorder or for a right hip disorder. Accordingly, the appeal will be denied. The Veteran is competent to report what he experienced in and after service. For example, he is competent to report when the initial manifestations of shoulder and back disorders and whether or not they have been chronic in nature. See, e.g., Layno v. Brown, 6 Vet. App. 465 (1994). In certain instances, lay evidence can be competent and sufficient to establish a diagnosis of a condition. King v. Shinseki, 700 F.3d 1339 (2012) (the Court of Appeals for the Federal Circuit discussing 38 U.S.C.A. § 5107(b) , 38 C.F.R. § 3.307(b) , and its holdings in Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009)). Such cases may occur under the following circumstances: (1) when a layperson is competent to identify the medical condition, (2) when a layperson is reporting a contemporaneous medical diagnosis, or (3) when a lay person describes symptoms which are subsequently diagnosed by a medical professional. Jandreau. Therefore, the Veteran's opinion, without more, is not dispositive. 38 C.F.R. § 3.159(a) . Competency must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. See Rucker v. Brown, 10 Vet. App. 67 (1997). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan. In deciding this appeal, the Board must weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307 (1999); Evans v. West, 12 Vet. App. 22 (1998). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. The probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion. Sklar v. Brown, 5 Vet. App. 140 (1993). In this regard, contemporaneous evidence has greater probative weight than a history reported by the Veteran. Curry v. Brown, 7 Vet. App. 59 (1994). However, medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See Obert v. Brown, 5 Vet. App. 30 (1993). The Shoulders A review of the evidence discloses that for at least part of his lengthy service career, the Veteran was a paratrooper assigned to airborne units. While it is reasonable to expect that he would have sustained stress on his body during his jumps, the relevant question is whether that stress resulted in chronic, identifiable disability. In the Veteran's case, they did not. The Veteran's service treatment records, the reports of examinations performed in September 1967 and September 1973, and the report of the Veteran's March 1979 service retirement examination are negative for any complaints or clinical findings of a disorder of either shoulder. During his service retirement examination, he answered "No", when asked if he then had, or had ever had, swollen or painful joints; arthritis, rheumatism, or bursitis; bone, joint, or other deformity; or a painful or trick shoulder. On examination, his upper extremities were found to be normal. These medical records are highly probative both as to the Veteran's subjective reports and their resulting objective findings. They were generated with a view towards ascertaining the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). In regard to the absence of a treatment for a shoulder disorder in service, the Veteran states that in the 1950's, '60's, and '70's, he was concerned about a career in service, and argues that one did not complain or report to "sick call" for career purposes. While there is no evidence that he abused sick call, his service treatment records show that in the 1960's and '70's, he was treated for a several disorders, including a cyst or boil on his eyelid, the flu, genital warts, hemorrhoids, and ear wax. It is reasonable to expect that if he had been having chronic shoulder problems, he would have sought medical assistance. That he did not do so militates against his current contention regarding avoidance of reporting for medical treatment in service. Chronic shoulder problems were first manifested by right shoulder pain in June 2005 and bilateral shoulder pain in May 2006 - approximately 35 years after he was discharged from active duty. In August 2005, R. L. S., M.D., diagnosed bilateral rotator cuff tendonitis, and, following the January 2009 VA examination, the diagnosis was mild degenerative changes in both shoulders. The Court has indicated that the normal medical findings at the time of separation from service, as well as the absence of any medical records of a diagnosis or treatment for many years after service may be probative evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability.); Forshey v. West, 12 Vet. App. 71, 74 (1998), aff'd sub nom. Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (noting that the definition of evidence encompasses "negative evidence" which tends to disprove the existence of an alleged fact). Despite these findings, the Veteran's reports of chronic shoulder pain since service prompted a January 2009 VA orthopedic examination to determine the nature and etiology of any shoulder disorder found to be present. Following the examination, the VA examiner concluded that it was less likely than not that the Veteran's bilateral shoulder disorders were due to the trauma sustained during parachute jumps in service. The examiner cited 3 reasons for his opinion: First, the Veteran's service treatment records were negative for a disorder in either shoulder. Second, the Veteran had cited a lifting injury 5 or 6 years earlier (i.e., in approximately 2003) in which he noted shoulder pain. Third, the VA examiner stated that the degenerative changes in the Veteran's shoulders were compatible with age. Those reasons were, generally, consistent with the other evidence of record. The only evidence of chronic problems in either shoulder in and since service comes from the Veteran. However, the diagnoses of rotator cuff tendonitis and bilateral degenerative changes are, generally, beyond the knowledge of a layman such as the Veteran. Moreover, there is no evidence that he reported a contemporaneous medical diagnosis or that he described symptoms during the many years after service which were subsequently diagnosed by a medical professional. The Veteran's contention has been investigated by competent medical professionals and found not supportable. Jandreau, supra. In sum, the preponderance of the evidence is against a finding of a chronic, identifiable disorder of either shoulder in service. The preponderance of the evidence is also against a finding of a nexus between the Veteran's current shoulder disorder and any incident in service. Therefore, the Veteran does not meet the criteria for service connection for a disorder in either shoulder. Accordingly, service connection is not warranted; and, to that extent, the appeal is denied. The Right Hip The Veteran also seeks entitlement to service connection for a right hip disorder. Although the Veteran states that it is also due to the stress sustained in multiple parachute landing falls, his service treatment records; the reports of his examinations in service, including that prior to his retirement; and the post-service treatment records and examination reports are negative for any findings of a chronic, identifiable right hip disorder. In addition, the 2009 VA examiner opined that it was less likely than not that the Veteran's right hip disorder was due to the trauma sustained during parachute jumps in service. The VA examiner cited the same reasons as he did for the shoulders. While the recent evidence, such as the report of the January2009 VA examination, shows complaints of right hip pain, the presence of pain without a diagnosed or identifiable underlying malady or condition, does not constitute a disability for which service connection may be granted. Sanchez-Benitez v. West, 259 F.3d 1356, 1361-1362 (2001). Absent the presence of a chronic, identifiable right hip disorder, the Veteran does not meet the criteria for service connection. Accordingly, service connection for a right hip disorder is not warranted; and that issue on appeal is also denied. Additional Considerations In arriving at these decisions, the Board has considered the doctrine of reasonable doubt. However, that doctrine is only invoked where there is an approximate balance of evidence which neither proves nor disproves the claim. In this case, the preponderance of the evidence is against the Veteran's claims for service connection for disorders of the shoulders and right hip. Therefore, the doctrine of reasonable doubt is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2012). ORDER Entitlement to service connection for a left shoulder disorder is denied. Entitlement to service connection for a right shoulder disorder is denied. Entitlement to service connection for a right hip disorder is denied. REMAND The Veteran also seeks a rating in excess of 20 percent for his service-connected diabetes mellitus with cataracts and erectile dysfunction, prior to March 25, 2009; a rating in excess of 40 percent for those disorders, since March 25, 2009; and a compensable rating for his service-connected hearing loss disability. As noted above, those issues require additional development, prior to further consideration by the Board; and, therefore, they are remanded for the following actions: 1. Ask the Veteran to submit the names and addresses of all health care providers or health care facilities that have treated the Veteran for diabetes mellitus, erectile dysfunction, and cataracts since July 2009. Also ask him to provide the dates of that treatment. Then request the records of that treatment directly from the health care providers or facilities identified by the Veteran. A failure to respond or a negative reply to any request must be noted in writing and associated with the claims folder. If the health care providers or health care facilities are affiliated with the federal government, efforts to obtain such records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each federal department or agency from whom they are sought. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2). If the requested records are unavailable, but the health care provider or facility is not affiliated with the federal government, notify the Veteran and his representative in accordance with the provisions of 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(e). 2. Ask the Veteran to submit the names and addresses of all health care providers or health care facilities that have treated the Veteran for a hearing loss disability since December 2006. Also ask him to provide the dates of that treatment. Then request the records of that treatment directly from the health care providers or facilities identified by the Veteran. A failure to respond or a negative reply to any request must be noted in writing and associated with the claims folder. If the health care providers or health care facilities are affiliated with the federal government, efforts to obtain such records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified by each federal department or agency from whom they are sought. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(2). If the requested records are unavailable, but the health care provider or facility is not affiliated with the federal government, notify the Veteran and his representative in accordance with the provisions of 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(e). 3. When the actions in part 1 have been completed. schedule the Veteran for an endocrinologic examination to determine the level of impairment attributable to his diabetes mellitus. All indicated tests and studies must be performed, and any necessary consultations must be scheduled. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. The examiner must state the manifestations of the Veteran's diabetes mellitus and the factors necessary to manage that disorder, for example: a) whether it requires the use of insulin, and if so, the number of injections per day; b) whether it requires a restricted diet, and regulation of the Veteran's activities; c) whether it is productive of episodes of ketoacidosis or hypoglycemic reactions; d) whether any associated episodes of ketoacidosis or hypoglycemic reactions require hospitalization and, if so, the number of hospitalizations per year; e) whether the Veteran must be followed by a diabetic care provider and if so, the frequency of those visits, e.g. weekly, every two weeks, etc; and f) whether the Veteran's diabetes mellitus is productive of a progressive loss of weight and strength. The examiner must also state the effect that the Veteran's diabetes mellitus has on his daily activities, including, but not limited to, his activities of daily living and the impact on his employment or ability to work. 4. When the actions in part 1 have been completed. schedule the Veteran for an eye examination to determine the level of impairment attributable to the cataracts associated with his diabetes mellitus. All indicated tests and studies must be performed, and any necessary consultations must be scheduled. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. The examiner must state the level of visual impairment attributable to the Veteran's cataracts and the effect that have on his daily activities, including, but not limited to, his activities of daily living and the impact on his employment or ability to work. 5. When the actions in part 1 have been completed. schedule the Veteran for a genitourinary examination to determine the level of impairment attributable to the erectile dysfunction associated with his diabetes mellitus. All indicated tests and studies must be performed, and any necessary consultations must be scheduled. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. The examiner must state the level of impairment attributable to the Veteran's erectile dysfunction and the effect that have on his daily activities, including, but not limited to, his activities of daily living and the impact on his employment or ability to work. 6. When the actions in part 2 have been completed. Schedule the Veteran for an audiologic examination to determine the level of impairment attributable to his service-connected hearing loss disability. All indicated tests and studies must be performed, including, but not limited to, puretone audiometric testing and speech discrimination testing. Any necessary consultations must also be scheduled. The claims folder and a copy of this remand must be made available to the examiner for review in conjunction with the examination, and the examiner must acknowledge receipt and review of these materials in any report generated as a result of this remand. 7. The Veteran is advised that it is his responsibility to report for all scheduled VA examinations and to cooperate in the development of his claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655 (2012). If the Veteran does not report for a scheduled VA examination, associate with the claims folder a copy of the notice informing him of the date, time, and location of that examination. If the notice was returned as undeliverable by the Post Office, that fact must be noted in writing and associated with the claims folder. 8. When the actions requested in parts 1, 2, 3, 4, 5, and 6 have been completed, undertake any other indicated development. Then readjudicate the following issues: a) Entitlement to a rating in excess of 20 percent for diabetes mellitus with erectile dysfunction and cataracts, prior to March 25, 2009; b) Entitlement to a rating in excess of 40 percent for diabetes mellitus with erectile dysfunction and cataracts, effective March 25, 2009; and, c) Entitlement to a compensable rating for a hearing loss disability. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. Thereafter, if in order, the case should be returned to the Board for further appellate action. By this remand, the Board intimates no opinion as to the final disposition of any unresolved issue. The Veteran need take no action, unless he is notified to do so. However, he is advised that he has the right to submit any additional evidence and/or argument on the matters the Board has remanded to the RO/AMC. Kutscherousky v. West, 12 Vet. App. 369, 372-73 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). ______________________________________________ VITO A. CLEMENTI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs