Citation Nr: 1327172 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 10-18 426A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for a left shoulder disability. REPRESENTATION Veteran represented by: Colin E. Kemmerly, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD T. Blake, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1972 to September 1974. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama which determined that new and material evidence had not been received to reopen service connection for a left shoulder disorder. If VA receives or associates with the claims folder relevant official service department records at any time after a decision is issued on a claim that had not been associated with the claims folder when VA first decided the claim, VA will reconsider the claim without requiring new and material evidence. 38 C.F.R. § 3.156(c) (2012). In July 2008, additional service treatment records were obtained and associated with the claims file. These records are pertinent to the claim on appeal and were not associated with the claims folder when VA first decided the claim in June 1989 and January 1993 rating decisions. As a result, this claim will be adjudicated on the merits and the Board has listed the issue on the title page accordingly. In May 2013, the Veteran testified at a video conference hearing held before the undersigned Veterans Law Judge. A copy of the transcript is of record. Following the hearing, the Veteran submitted additional private treatment records and a waiver of initial RO consideration of such evidence. 38 C.F.R. § 20.1304(c) (2012). The Board has not only reviewed the Veteran's physical claims file but also the Veteran's file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. All relevant evidence necessary to decide the Veteran's appeal has been obtained. 2. The current left shoulder disorder, to include degenerative joint disease of acromioclavicular joint (AC) joint, is contemplated under arthritis which is among the diseases listed as chronic diseases under 38 C.F.R. § 3.309(a). 3. The Veteran did not have a chronic arthritic left shoulder disorder in service or during the presumptive period. 4. Symptoms of a chronic arthritic left shoulder disorder have not been continuous since separation from service. 5. The Veteran sustained a left shoulder injury during active service, but the current disorder, rotator cuff tear and degenerative joint disease of the AC joint of the left shoulder, is not related to service and did not manifest to a compensable degree within one year of separation from service. CONCLUSION OF LAW The criteria for service connection for a left shoulder disorder have not been met. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307(a)(3), 3.309(a) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under 38 C.F.R. § 3.303(a), service connection means that the facts, as shown by the evidence, establishes that a particular injury or disease was incurred coincident with service. It may be granting by affirmatively showing inception or aggravation during service. Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Service connection can also be established through application of statutory presumptions, including for chronic diseases, such as arthritis, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012). Under 38 C.F.R. § 3.303(b), if a chronic disease is shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, may be service connected, unless clearly attributable to intercurrent causes. For a showing of a chronic disorder in service, the mere use of the word chronic will not suffice; rather, there is a required combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. When the fact of chronicity in service (or during the presumptive period) is not adequately supported, then a showing of continuity after discharge is required to support the claim. The provisions of 38 C.F.R. § 3.303(b) have been interpreted as an alternative route to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In this case, the evidence of record shows x-ray results of arthritis of the left shoulder, thus 38 C.F.R. § 3.303(b) applies and will be discussed below. Service connection may also 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 Federal Circuit has held that when a claimed disorder is not included as a presumptive disorder, direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In making all determinations, the Board must consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. See Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that the Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C.A. § 7104(a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The Veteran contends that service connection is warranted for a left shoulder disorder due to a September 1973 in-service injury to the left shoulder while playing football. The evidentiary record shows a current diagnosis of rotator cuff tear and degenerative joint disease of the AC joint of the left shoulder, as noted in a December 2012 VA Disability Benefits Questionnaire (DBQ) examination report for shoulder and arm conditions. A December 2009 VA outpatient treatment record noted current diagnoses of old acromioclavicular separation of the left shoulder and traumatic arthritis of the left AC joint. Additionally, private treatment records note current diagnoses of the left shoulder to include chronic cuff tear, chronic cuff arthropathy, posttraumatic AC arthrosis and instability, and anterior dislocation. The criteria of a current disability is met. The Board also notes multiple x-ray findings of arthritis of the left shoulder. Initially, December 1988 and January 1989 private reports documented degenerative changes on the left AC joint. An October 2008 VA outpatient report revealed arthritic hypertrophic bone formation of the left AC joint. Results from November 2009 and May 2010 private reports included advanced arthritic change in the AC joint. Since the current left shoulder disorder, to include degenerative joint disease, is contemplated under arthritis which is listed as a chronic disease under 38 C.F.R. § 3.309(a), the Board considers whether service connection is warranted on a presumptive basis as due to a chronic disease. See 38 C.F.R. §§ 3.309(a), 3.303(b). After review of the evidentiary record, the Board finds the evidence demonstrates that the Veteran did not have a chronic arthritic left shoulder disorder in service or during the presumptive period nor have symptoms of a chronic arthritic left shoulder disorder been continuous since separation from service. The service treatment records document, that in September 1973, the Veteran injured the left shoulder and evaluation revealed full amount of movement and no fracture. An x-ray examination request slip for the left shoulder noted "playing football" and on the back was the notation of NAD. See MEDICAL ABBREVIATIONS, 198 (Neil M. Davis, 14th ed. 2009) (nothing abnormal detected, no acute distress, or no apparent distress). At the May 2013 Board hearing, the Veteran testified that after the injury he received pain medicine and his shoulders were pulled back, and denied being evaluated for the left shoulder during service or that the x-ray results of the left shoulder were not discussed with him. Subsequently, a May 1974 separation examination report noted clinical evaluation of the upper extremities was normal, the Veteran reported "to the best of my knowledge I am in good health," and the examiner noted "health records reviewed and no significant interval history noted." On the May 1974 Report of Medical History, the Veteran duplicated his previous statement and marked "no" for having or ever having had arthritis or bone, joint, or other deformity, providing evidence against his own claim. The Veteran asserts that symptoms of a chronic arthritic left shoulder disorder have been continuous since separation from service, notwithstanding his statements above. Pursuant to private treatment sessions, the Veteran reported in May 2010 to having shoulder pain since 1973, pain has gotten more severe since 2005, and unable to lift his arm since around 1975. In July 2010, he noted "his shoulder has been like this since 1973 when he hurt it." VA outpatient treatment records also document the Veteran's complaints of intermittent left shoulder pain since the in-service injury and such pain has gotten worse over the past 10 years. The Board acknowledges that the Veteran is competent to report readily observable features or symptoms of an injury. See Layno, 6 Vet. App. at 469. Nonetheless, the Veteran's assertions of continuous symptoms of a left shoulder disorder since service are not credible. The Veteran's more recently-reported history of continued symptoms of a left shoulder disorder since active service is inconsistent with the other lay and medical evidence of record he has provided. Indeed, while he now asserts that his disorder began in service, in the more contemporaneous medical history he gave at the service separation examination, he denied any history or complaints of symptoms of a left shoulder disorder. Specifically, the service separation examination report reflects that the Veteran was examined and his upper extremities, to include the left shoulder, were found to be clinically normal. His in-service history of symptoms at the time of service separation is more contemporaneous to service, so is of more probative value than the more recent assertions made many years after service separation. See Harvey v. Brown, 6 Vet. App. 390, 394 (1994) (upholding a Board decision assigning more probative value to a contemporaneous medical record report of cause of a fall than subsequent lay statements asserting different etiology); Madden, 125 F.3d at 1481 (upholding a Board decision giving higher probative value to a contemporaneous letter a veteran wrote during treatment than to his subsequent assertion years later). During the course of this appeal, the Veteran also reported the onset of symptoms to different times. As noted above, he reported the onset of symptoms during service at May 2010 and July 2010 private treatment and multiple VA outpatient treatment sessions. On the other hand, at the May 2013 Board hearing, the Veteran affirmed, that from the time of separation from service in 1974 to his car accident in 1988, he did not have any intervening injuries or accidents to the left shoulder. He also affirmed he began to see Dr. C. L., an orthopedist, for the left shoulder in 1988. These inconsistencies in the record weigh against the Veteran's credibility as to the assertion of continuity of symptomatology since service. See Madden, 125 F.3d at 1481 (holding that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Caluza v. Brown, 7 Vet. App. 498, 512 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (upholding the Board's finding that a veteran was not credible because lay evidence about a wound in service was internally inconsistent with other lay statements that he had not received any wounds in service). Moreover, the Board finds the Veteran's current arthritic left shoulder disorder did not manifest to a compensable degree within one year of separation from service. As noted above, x-ray results of the left shoulder first revealed findings of arthritis in December 1988, which is multiple years after separation from service. As a result, the Board finds that a preponderance of the lay and medical evidence that is of record weighs against this claim for service connection on a presumptive basis as due to a chronic disease. See 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). The Board now considers whether service connection is warranted for a left shoulder disorder on a direct basis. See 38 C.F.R. §§ 3.303(a), (d). As noted above, the Veteran is currently diagnosed with a left shoulder disorder and service treatment records note an injury to the left shoulder. Nevertheless, as discussed above, the evidentiary record does not show the in-service left shoulder injury manifested in a disability during active service. The remaining question for consideration is whether the current left shoulder disorder is caused by or related to the in-service injury. In September 2010, Dr. C. L. signed a document indicating his agreement to the following statement "it is at least as likely as not that the current condition is connected/related to the in-service injury." The Board notes that private treatment records for the Veteran's left shoulder from Dr. C. L. are of record; however, this opinion lacks probative value because is not supported by a sufficiently clear and well-reasoned rationale. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). On the other hand, a December 2012 VA DBQ medical opinion provides that the Veteran's current left shoulder disorder was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner explained that it appears the Veteran's in-service injury resolved without residual during military service, and the Veteran sustained a new trauma after service in 1988 causing dislocation of the shoulder, which often causes rotator cuff tears. The Board finds that the most probative evidence regarding a nexus between the current left shoulder disorder and in-service injury is the December 2012 VA DBQ medical opinion, which, as noted above, did not etiologically relate the current disorder to service. This opinion was provided after a noted extensive review of the claims file, to include the Veteran's service treatment records and post-service VA outpatient and private treatment records and x-ray reports, and supported by factual accuracy and sufficient rationale. The Board acknowledges that while the Veteran is competent to report symptoms that one experiences, he is not competent and with the appropriate medical training and expertise to offer an opinion on a medical matter, including the etiology of his current left shoulder disorder. See Layno, 6 Vet. App. at 470; Bostain v. West, 11 Vet. App. 124, 127 (1998); see also Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). The question of causation, in this case, involves a complex medical issue that the Veteran is not competent to address (such as how the Veteran's current left shoulder disorder began from an in-service injury in 1974). Jandreau, 492 F.3d at 1376-77. The fact that the Veteran served on active duty from June 1972 to September 1974 and treatment for the left shoulder reportedly began in 1988 after the post-service accident supports this finding. For the reasons and bases discussed above, the Board finds that a preponderance of the evidence is against the claim for service connection for a left shoulder disorder, making it more likely the current problem is not the result of service. As a result, this claim must be denied and the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and the 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). VA must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. The Board finds that the VCAA notice requirements have been satisfied by an October 2008 letter. In this letter, VA informed the Veteran that in order to substantiate a claim for service connection, the evidence needed to show he had a current disability, a disease or injury in service, and evidence of a nexus between the post service disability and the disease or injury in service, which was usually shown by medical records and medical opinions. As to informing the Veteran of which information and evidence he was to provide to VA and which information and evidence VA would attempt to obtain on his behalf, VA informed the Veteran it had to obtain any records held by any federal agency. This letter also informed the Veteran that on his behalf VA would make reasonable efforts to obtain records that were not held by a federal agency, such as records from private doctors and hospitals. Finally, the letter told the Veteran that he could obtain private records himself and submit them to VA. 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 a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection was awarded. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the October 2008 letter included the type of evidence necessary to establish a disability rating and effective date. Regarding the duty to assist, VA must make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the claim on appeal, the evidence of record includes the Veteran's service treatment records, VA outpatient treatment records, private treatment records, and December 2012 VA DBQ examination report and medical opinion. The VA examiner reviewed the Veteran's claims file and medical history, recorded pertinent examination findings, and provided a conclusion with supportive rationale. The Board notes that the VA examination report is probative. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In May 2013, the Veteran testified at a video conference hearing held before the undersigned Veterans Law Judge. During that hearing the Veteran's representative and the Veterans Law Judge explained the issues and asked the Veteran questions to ascertain the nature of any in-service events and symptoms. The Veteran's representative and the Veterans Law Judge also asked questions to draw out the current nature of the Veteran's complaints, and the hearing focused on the elements necessary to substantiate his claim. Neither the Veteran nor his representative has suggested any deficiency in the conduct of that hearing; and all pertinent evidence that might substantiate the claims was identified by the Veteran and has been obtained. Therefore, the Board finds that, consistent with Bryant v. Shinseki, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (holding that 38 C.F.R. § 3.103(c)(2) requires that a Veterans Law Judge fully explain the issues and suggest the submission of evidence that may have been overlooked during Board hearings). For the foregoing reasons, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claim on appeal. The evidence of record provides sufficient information to adequately evaluate the claim, all obtainable evidence identified by the Veteran relative to the claim has been obtained and associated with the claims file, and the Board is not aware of the existence of any additional relevant evidence which was not obtained. Therefore, no further assistance to the Veteran with the development of evidence is required. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d); see Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). ORDER Service connection for a left shoulder disorder is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs