Citation Nr: 1327491	
Decision Date: 08/27/13    Archive Date: 09/05/13

DOCKET NO.  10-32 488	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to service connection for a back disability.

2.  Entitlement to service connection for a neck and shoulder disability, including as secondary to a back disability.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran




ATTORNEY FOR THE BOARD

P. Childers, Counsel


INTRODUCTION

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The Veteran served on active duty from June 1966 to May 1970. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

In January 2012, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing in Waco, Texas.  A transcript of the hearing is in the claims file.

In April and June of 2012, the Board remanded the case for additional development.  No further action to ensure compliance with the Board's remand directives is required (Stegall v. West, 11 Vet. App. 268 (1998)); however, on review of the entire record the Board finds that additional evidentiary development is needed with regard to the claims for service connection for a back disability and a neck disability.

The issues of service connection for a back disability and a neck disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C.




FINDING OF FACT

The Veteran does not have a diagnosed shoulder disorder; his bilateral shoulder pain is a manifestation of his cervical spine disorder.  


CONCLUSION OF LAW

A shoulder disability was not incurred in or aggravated in service.  38 U.S.C.A. §§ 1110, 1117, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.317 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSIONS

Duties to Notify and Assist

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

The notice requirements of the VCAA require VA to notify the claimant of the information and evidence that is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain.   38 C.F.R. § 3.159(b).  The requirements apply to all five elements of a service connection claim: Veteran status, existence of a disability, a connection between a Veteran's service and the disability, degree of disability, and effective date of the disability.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004).  However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant.  Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule).  Further, in letters dated in April 2004, July 2008, and April 2012, the Veteran was provided notice regarding the information and evidence needed to substantiate his claim for service connection, including the criteria for a grant of service connection; the information and evidence to be submitted by him; and the information and evidence to be obtained by VA.  He was also apprised of how disability evaluations and effective dates are assigned.  

As regards VA's duty to assist, all pertinent records from all relevant sources identified by the Veteran, and for which he authorized VA to request, have been obtained.  VA has associated with the claims file the service treatment records and reports of his post-service care.  He was also afforded a VA examination, and testified regarding his claim for service connection before the undersigned Veterans Law Judge in a January 2012 hearing.

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge 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 issues and (2) the duty to suggest the submission of evidence that may have been overlooked.  During the Board hearing the Veteran was ably assisted by an accredited representative from the Texas Veterans Commission.  His representative, and the Veterans Law Judge, asked questions to ascertain the onset of his shoulder problems and whether there was a relationship to service.  No pertinent evidence that might have been overlooked and that might substantiate the claim was identified by the Veteran or the representative.  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.  Additionally, the Veteran has demonstrated actual knowledge of what was needed for the claim to be granted, as evidenced by the questioning pursued by his representative at the hearing.  Neither the representative nor the Veteran have suggested any deficiency in the conduct of the hearing.  Therefore, the Board finds that, consistent with Bryant, the Veterans Law Judge complied with the duties set forth in 38 C.F.R. § 3.103(c)(2).  

The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the claim herein addressed on the merits, and has not argued that any error or deficiency in the accomplishment of the duties to notify and assist has prejudiced him in the adjudication of his appeal.  See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006).  In view of the forgoing, the Board finds that VA has satisfied its duties to notify and assist under the governing law and regulation.  The Board will therefore review the merits of the Veteran's claim, de novo.

Merits

The Veteran seeks service connection for bilateral shoulder pain.  He reports receiving treatment on one occasion during service for shoulder pain while he was playing football in 1969.  

There is no record of a diagnosed shoulder disorder in service treatment records, or in VA and private medical records.

On VA shoulder and arm examination in September 2012, the Veteran complained of pain in both shoulders, and said that he had been told that his shoulder pain came from his neck.  He denied any shoulder injury or trauma.  Examination found no evidence of a shoulder disorder and no diagnosis was returned.  

Principles of Service Connection

Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service.  38 C.F.R. § 3.303(a).  Disorders diagnosed after service may still be service connected if all the evidence, including pertinent service records, establishes that the disorder was incurred in service.  38 C.F.R. § 3.303(d).  

In deciding a claim for service connection on the merits, the Board must assess the credibility and weight of all evidence, including the Veteran's statements and the medical evidence to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran.  See Owens v. Brown, 7 Vet. App. 429 (1995) (it is the Board's fundamental responsibility to evaluate the probative value of all medical and lay evidence); see also Evans v. West, 12 Vet. App. 22, 30 (1998) (providing that it is the responsibility of the Board to weigh the evidence and determine where to give credit and where to withhold the same).  Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value.  See Cartwright v. Derwinski, 2 Vet. App. 24, 26 (1991); Hatlestad v. Derwinski, 1 Vet. App. 164, 169-70 (1991); Gilbert v. Derwinski, 1 Vet. App. 49, 59 (1990).  

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of symptoms.  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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. 

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 that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  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).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

In determining the probative value to be assigned to a medical opinion, the Board must consider three factors.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).  The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case.  A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran.  See id. at 303-04.  

The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion.  See Id.  A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006).

The third and final factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis.  The most probative value of a medical opinion comes from its reasoning.  Therefore, a medical opinion containing only data and conclusions is not entitled to any weight.  In fact, a review of the claims file does not substitute for a lack of a reasoned analysis.  See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions.").  

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the Veteran.  See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.  

In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), it was observed that "a Veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail."  To deny a claim on its merits, the preponderance of the evidence must be against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Analysis

The Veteran seeks service connection for a shoulder disorder, described as pain; however, the medical evidence, including the 2012 VA examination findings, shows that the Veteran's shoulder pain does not comprise a separate disease entity but is instead a symptom of his degenerative cervical spine disease.  And a symptom, such as pain, alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.  Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001).  

In this regard the Board notes that although the Veteran is competent to state that he has pain, a diagnosis of a musculosketal disorder is a matter that is medical in nature; that is, not capable of lay observation.  And it is not argued or shown that the Veteran is qualified through specialized education, training, or experience to make a diagnosis.  Thus, to the extent the Veteran's statements are offered as proof of a diagnosed disability, his statements are not to be considered as competent evidence favorable to claim.  Id.; see also McClain v. Nicholson, 21 Vet. App. 319 (2007).

According to the competent medical evidence of record, the Veteran's shoulder pain is caused by his cervical spine disease, and is not a separate disease entity in and of itself.  There is no competent evidence of record that contradicts this conclusion.

Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  See 38 U.S.C.A. §§ 1110.  In the absence of proof of present disability, there can be no valid claim.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C.A. § 1131 requires existence of present disability for VA compensation purposes).  

As the Veteran's bilateral shoulder pain is not due to a separate, diagnosed shoulder disorder, it is not a disability for VA compensation purposes.  Service connection under 38 C.F.R. § 3.303 is therefore not warranted.  

The Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). 


ORDER

Service connection for a shoulder disability is denied.




REMAND

In correspondence dated in January 2000, the Veteran reported that he was treated at Tripler Hospital in Pearl Harbor, Hawaii, for low back pain resulting from a 1968 motor vehicle accident during his tour of duty in Hawaii.  He adds that he was reduced in rank due to this incident based on unauthorized use of a government vehicle, and says that the incident was documented in his service personnel records.  See also May 2003 Decision Review Officer Hearing Transcript, pp. 4-7.  He also reports that he received treatment for neck and shoulder pain in 1969 while playing football at Camp Jejune.

Service personnel records confirm that the Veteran was stationed in Hawaii in 1968 and at Camp Jejune in 1969, but there is no mention of the motor vehicle accident in the few service records that are in the claims file, and no record, whatsoever, of any back or neck complaints.  In fact, the only military medical records in the claims file are the reports of the Veteran's enlistment and separation examinations, and his vaccination record.  This is significant because the Veteran's claims file is rebuilt, and there is an indication in the claims file that some of the Veteran's service treatment records may be missing.  See National Personnel Records Center's (NPRC) August 1997 response to RO's request for service treatment records.  See also June 2002 letter to Veteran regarding paucity of service treatment records in claims file.  There is no indication that another request for service treatment records was made after the 1997 communication from the NPRC.  As the Veteran has provided prima facie evidence of treatment for back and neck pain secondary to trauma during service, and as the VA examiner's opinion is premised on the absence of any in-service record of any back or neck complaints, additional efforts to ensure that the claims file is properly documented should be taken.  38 C.F.R. § 3.159(c)(2).  See also Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005), aff'd 455 F.3d 1346 (Fed. Cir. 2006) (regarding VA's heightened duty to assist where service treatment records are missing).  On remand a request should also be made for VA treatment records dating from 1970 to 1985, including records relating to the back surgery purportedly done by VA in 1985.  Id.

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Contact the appropriate custodian of military records for a copy of the Veteran's service treatment records, including those compiled during the Veteran's 1967-1968 tour of duty in Hawaii, and during his 1969 posting at Camp LeJeune.  A request should specifically be sent to Tripler Hospital in Hawaii, and to the medical facility at Camp LeJeune, North Carolina, for all of the Veteran's service treatment records.

NOTE:  The Veteran's claims file is rebuilt, and there is an indication in the August 1997 response from the National Personnel Records Center that some of the Veteran's service treatment records may have been sent to VARO 216 in May 1974.  Consequently, appropriate action to obtain records from this facility is likewise warranted.  

If no additional service treatment records are found the claims file must be documented accordingly.

2.  Request a complete copy of the Veteran's Official Military Personnel File and associate it with the claims file.

3.  Associate, with the claims file, physically or electronically, all of the Veteran's VA treatment records dating from 1970 to 1985, including those relating to the Veteran's back surgery that was reportedly done by VA in 1985.  If no records are found the claims file must be documented accordingly.

4.  After completion of all of the above and any other necessary development, including provision to the Veteran, if warranted, of a new VA examination, re-adjudicate the appeals for service connection for a low back disorder and a neck disorder.  If either issue remains denied, issue the Veteran and his representative an appropriate Supplemental Statement of the Case that includes clear reasons and bases for all determinations, and affords the appropriate time period to respond.  Then, return the case to the Board for appellate review, if indicated.  

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims 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).



______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs