Citation Nr: 1326502	
Decision Date: 08/20/13    Archive Date: 08/26/13

DOCKET NO.  05-31 324	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUES

1.  Entitlement to service connection for bilateral hip disability (to include as secondary to service-connected left ankle and left knee disabilities).

2.  Entitlement to service connection for low back disability to include degenerative disc disease (to include as secondary to service-connected left ankle and left knee disabilities).

3.  Entitlement to service connection for bilateral shoulder disability.


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

Veteran
ATTORNEY FOR THE BOARD

C.A. Skow, Counsel


INTRODUCTION


The Veteran served on active duty from June 1967 to January 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from July 2005 and October 2007 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska.

With respect to the low back claim, the Board acknowledges that the RO denied back strain in June 1969 and that the RO characterized the Veterans April 2005 claim for low back disability as a claim to reopen a previously denied claim for service connection for low back disability.  The RO determined in September 2008 that evidence sufficient to reopen the back claim had been submitted and then denied the claim on a de novo basis.  Having reviewed the history of the claim, the Board finds that the strict evidentiary requirements for reopening a previously denied claim do not apply here as the Veteran's claim for low back disability involves a newly diagnosed disorder, degenerative disc disease, which is a disability distinct from the previously denied back claim for strain.  See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (finding that a claim based on a new diagnosis is to be treated as a new claim, obviating the need for new and material evidence).  As such, the Board has captioned the claim above as entitlement to service connection for low back disability to include degenerative disc disease, which is a new claim.

In July 2006, the Veteran testified at a hearing before a member of the Board at the RO.  However, due to recording difficulty, a hearing transcript could not be made.  The Veteran was afforded the opportunity for another hearing before a member of the Board.  In February 2013, the Veteran testified before the undersigned Veterans Law Judge (VLJ).  A hearing transcript is associated with the Veteran's electronic claims file.

The Board notes that, in addition to the paper claims file, there is an electronic claims file associated with the Veteran's claim.  A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal except as to the February 2013 hearing transcript.

In November 2009 and October 2012, the Board remanded the appeal for a VA medical opinion and a Board hearing, respectively.

The issues of service connection for bilateral hip disability and low back disability are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

Bilateral shoulder disability, diagnosed as degenerative joint disease, is not shown in service and arthritis is not shown within the initial post separation year; also, degenerative joint disease of the shoulders is not etiologically related to service to include the jeep accident in service.


CONCLUSION OF LAW

The criteria for service connection for bilateral shoulder disability to include degenerative joint disease are not met.  38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ .303, 3.307, 3.309 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

The Veterans Claims Assistance Act (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim.  They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.

As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  Although the regulation previously required VA to request that the claimant provide any evidence in the claimant's possession that pertains to the claim, the regulation has been amended to eliminate that requirement for claims pending before VA on or after May 30, 2008. The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held the plain language of 38 U.S.C.A. § 5103(a) requires notice to a claimant pursuant to the VCAA be provided "at the time" or "immediately after" VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).

VA satisfied its duty to notify. The Veteran filed his shoulder claim in January 2007.  VA provided him letters dated in February and March 2007 that provided fully adequate VCAA notice prior to the rating decision on appeal.  Also, the Veteran has not asserted any prejudicial or harmful error in VCAA notice.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (VCAA notice should not be presumed prejudicial, and that the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis).
VA satisfied its duty to assist the Veteran.  VA obtained service treatment records along with all other available, relevant medical records and associated these records with the claims files.  VA afforded the Veteran an appropriate VA medical examination.  Lastly, VA afforded the Veteran a hearing on appeal.  A hearing transcript is associated with the claims file.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issue(s) and (2) the duty to suggest the submission of evidence that may have been overlooked.  Here, the VLJ discussed the existence of possible outstanding evidence that might be obtained in support of the claim and suggested the submission of medical evidence of nexus in support of the Veteran's theory that his disability is related to a jeep accident in service.  The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for service connection.  The VLJ held the record open for 60 days so that the Veteran could submit additional evidence to substantiate his claim for compensation.  Therefore, the Board finds that the VLJ substantially complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).

Accordingly, the Board will address the merits of the claim.

II.  Service Connection for Shoulder Disability

The Veteran seeks VA disability compensation for bilateral shoulder disability.  He testified in February 2013 that his disability is due to a jeep accident in service.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary 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.  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 (West 2002); 38 C.F.R. § 3.102 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Legal Criteria

Initially, the Board notes the Veteran does not assert that his claimed problems are a result of combat.  Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not for application in this matter.

Compensation may be awarded for disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. §§ 1110, 1131.  Service connection basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein.  38 C.F.R. § 3.303.  Service connection may be granted for any disease 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).  

Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in- service incurrence or aggravation of a disease or injury; and (3) 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); 38 C.F.R. § 3.303.

Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology.  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Savage v. Gober, 10 Vet. App. 488, 495-97 (1997); see also 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.  Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b).  However, the Federal Circuit decision in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), recently held the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a).

Arthritis shall be considered to have been incurred in or aggravated by service although not otherwise established during the period of service if manifested to a compensable degree within one year following service in a period of war or following peacetime service on or after January 1, 1947.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307(a) (3), 3.309(a).

The Board is required to analyze the credibility and probative value of the evidence, account for any evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant.  See Daye v. Nicholson, 20 Vet. App. 512, 516 (2006).  It is noted that competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").  In determining whether statements are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant.  Caluza v. Brown, 7 Vet. App. 498 (1995).

A layperson (non-expert) can provide competent evidence as to events witnessed by the person and symptoms experienced by the person, both as to kind and date of the event or symptoms.  See Layno supra, 470 (explaining that "lay testimony is competent only so long as it remains centered upon matters within the knowledge and personal observations of the witness").

Depending on the facts of the case, a non-expert diagnosis may be competent evidence. In this regard, the U.S. Court of Appeals for the Federal Circuit has provided guidance, stating has follows:  "Lay 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, Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011).  In Jandreau, the Federal Circuit provided an example, stating that a layperson would be competent to identify a simple condition such as a broken leg, but not competent to provide evidence as to a more complex medical question such as a form of cancer.  Id. at footnote 4.  This indicates to the Board that the complexity of the question at issue is a factor to be considered when determining if a layperson's opinion is competent evidence.

Although it is error to categorically reject a non-expert opinion as to etiology, or nexus, not all questions of nexus are subject to non-expert opinion.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009).  Whether a layperson is competent to provide a nexus opinion depends on the facts of the particular case.

In Davidson, the Federal Circuit drew from Jandreau to explain its holding.  Id.  Taking that decision together with the explanation in Layno, leads the Board to conclude that whether a non-expert nexus opinion is competent evidence depends on the complexity of the particular question and whether a nexus opinion could be rendered based on personal observation.

Analysis

Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against service connection for bilateral shoulder disability.  Neither right nor left shoulder disability is shown in service, and arthritis is not shown within the initial post separation year.  Also, degenerative joint disease of the shoulders is first shown many years after service and is not etiologically related to service to include the jeep accident involving the Veteran in service.

Service treatment records (STRs) are silent for shoulder complaints or abnormal pathology.  A September 1965 letter from a private physician associated with the STRs reflects a history of an automobile accident in June 1965, wherein the Veteran "was dazed, but not knocked out and did not seek immediate emergency care."  It was noted that he was seen 2 days later in this doctor's office with complaints of right costovertebral angle and lumbar pain.  Treatment was an analgesic and localized heat at home.  The doctor reported that the Veteran was seen on several other occasions with complaints of back and neck pain.  No complaints or findings relative to the shoulder joint are indicated.  Report of service separation examination dated in January 1969 reflects normal clinical evaluation.  The Veteran denied swollen or painful joints and a painful or "trick" shoulder on the history part of that examination report.

Degenerative joint disease of the shoulders is first documented in December 2007.  VA treatment records show that the Veteran underwent physical therapy in 2008.

Report of VA examination dated in August 2009 reflects findings for degenerative joint disease of the shoulders.  By history, the Veteran developed stiffness in the shoulders 3-4 years earlier and did not recall any related injury or trauma.  The examiner opined that arthritis of the shoulders was less likely as not cause by or the result of the Veteran's jeep accident in service, noting the many years intervening the alleged injury and any complaints or findings.

The Veteran filed an original VA disability compensation claim in February 1969.  He filed another claim for VA disability compensation in October 2003.  In connection with these claims, he did not report any disease of the shoulder or injury coincident with service or a jeep accident.  A January 2004 statement reflects the Veteran's first post service documented report of injuries sustained due to a jeep accident in service.  At this time, he reported injury to the knees and elbows, but not the shoulders.  He reported that he was "thrown completely from the jeep in the accident and unconscious for a period of time."  The Veteran submitted a photocopy of a picture showing his arms raised with a bandaged right elbow and right knee along with his left palm.  At a Decision Review Officer hearing held in October 2005, the Veteran discussed his jeep accident in service and theorized that his hip problems were related to this incident, but he made no mention of shoulder problems.  VA received a claim for bilateral shoulder disability in January 2007.  In March 2007, the Veteran reported that he sustained injures as a result of a jeep accident in February 1968, wherein he was "thrown from the vehicle and landed on my back."  He estimated being thrown 10 to 30 feet in the air and being treated at a field hospital in Vietnam.

The Veteran theorizes that his current shoulder problems are due to a jeep accident in service.  He is competent to report that he was involved in a motor vehicle accident, his symptoms, and treatment.  Layno, supra.  See also Falzone v. Brown, 8 Vet.App. 398, 405 (1995).  Lay assertions may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau, supra. at 1377 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006).  In this regard, the Board accepts that the Veteran was involved in a jeep accident.

However, to the extent that the Veteran reports that he sustained shoulder injury due to his jeep accident in service or continuity of symptoms since service, the Board finds that these assertions are not credible in view of normal clinical evaluation on service separation examination dated in January 1969, the Veteran's denial of shoulder problems on the history part of that exam, and the absence of any notation of shoulder complaints or treatment in service.  Furthermore, the Veteran is an inconsistent historian.  The Veteran reported to the private physician treating him in 1965 for back problems in service that he was involved in an automobile accident in June 1965, and that he "was dazed, but not knocked out and did not seek immediate emergency care."  This history is incongruous with the history provided in connection with the Veteran's statement to VA for disability compensation purposes where he reported being unconscious and hospitalization.  The above, coupled with the absence of any documented shoulder complaints for more than 30 years following service separation weighs against the credibility of such assertions.

Additionally, the Board finds that the Veteran is not competent to relate his currently diagnosed degenerative joint disease of the shoulders to service to include his jeep accident more than 30 years ago as this determination is not susceptible to lay observation, unlike a broken leg.  See Jandreau, supra.

The Board assigns greater probative value to the service separation examination dated in January 1969, which shows normal clinical evaluation and no history of shoulder problems, and to the negative VA medical opinion dated in August 2008, which indicated that it was less likely than not that the Veteran's arthritis of the shoulders due to the jeep accident in service.  The Board finds that the service separation examination is more probative because it was prepared near in time to the alleged injury by a medical professional with consideration of a medical history prepared by the Veteran himself.  The Board further finds that the VA medical opinion is highly probative as it was prepared by a skilled, neutral, medical professional after reviewing the claims files, obtaining a medical history, and conducting an examination.  The VA opinion is also probative because the examiner supported the conclusion reached.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008).  Notably, there is no favorable medical opinion in the record to weigh against this opinion although the Veteran was counseled at his Travel Board hearing that a medical opinion linking his disability to the incident in service would benefit him and the record was held open for the submission of such evidence.

The weight of the evidence is against the claim. As the evidence of record is not roughly in equipoise, there is no doubt to resolve.  38 U.S.C.A. § 5107 (West 2002); Gilbert, supra.  Accordingly, the claim is denied.


ORDER

Service connection for bilateral shoulder disability to include degenerative joint disease is denied.



REMAND

The Board finds that the medical evidence of record is inadequate as it does not fully address all theories of entitlement.  Specifically, in regards to the claims for bilateral hip disability and low back disability, the medical evidence of record does not address both whether the disabilities are caused by service-connected knee and/or ankle disabilities and whether the disabilities are aggravated by service-connected knee and/or ankle disabilities.  Therefore, remand is necessary to ensure that VA has met its duty to assist the Veteran and to ensure that the Board's prior remand directives have been substantially met.  See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers on the claimant, as a matter of law, the right to compliance with the remand orders).

Accordingly, the case is REMANDED for the following action:

1.  The RO or AMC should obtain all updated VA treatment records and any other outstanding records pertinent to the Veteran's claim

2.  The Veteran should be scheduled for a VA orthopedic examination with a physician.  The physician should opine as to whether it is as likely as not (50 percent probability or greater) that any disorder of the hips or low back, to include degenerative joint disease and degenerative disc disease, is related to service to include the Veteran's history of involvement in a jeep accident in service.  Also, the physician should opine on the matter of whether (a) either hip disability was caused by service-connected knee and/or ankle disabilities; (b) either hip disability is aggravated by service-connected knee and/or ankle disabilities; (c) low back disability was caused by service-connected knee and/or ankle disabilities; (d) low back disability is aggravated by service-connected knee and/or ankle disabilities.
The claims files and any pertinent evidence in the electronic claims file that is not included in the claims files should be made available to the physician.

A complete rationale for each opinion is required.  That is, the physician should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusions.

If an opinion cannot be expressed without resort to speculation, the examiner should so indicate and discuss why an opinion is not possible, to include whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion.  See Jones v. Shinseki, 23 Vet. App. 382, 389 (2010).

3.  The RO or AMC should also undertake any other development it determines to be warranted.

3.  Then, the RO or AMC should readjudicate the claims.  If the benefit sought on appeal is not granted to the Veteran's satisfaction, he and his representative should be furnished a Supplemental Statement of the Case and given the requisite opportunity to respond before the case is returned to the Board for further appellate action.

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (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. 2012).




______________________________________________
MICHAEL LANE
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs