Citation Nr: 1329004 Decision Date: 09/10/13 Archive Date: 09/17/13 DOCKET NO. 09-47 289 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for right shoulder disability. 2. Entitlement to service connection for low back disability. ATTORNEY FOR THE BOARD J. Chapman, Associate Counsel INTRODUCTION The Veteran served on active duty from March 2002 to May 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). These matters were remanded by the Board in April 2013 for additional development. This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran's right shoulder disability was not manifested during service and is not otherwise causally related to service; it is not proximately due to or aggravated by his service-connected left shoulder disability. 2. The Veteran does not currently have a chronic low back disability. CONCLUSIONS OF LAW 1. Right shoulder disability was not incurred or aggravated during the Veteran's active duty service, nor is right shoulder disability proximately due to his service-connected left shoulder disability. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2012). 2. Low back disability was not incurred in or aggravated by the Veteran's active duty service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 Under the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107 and 5126; see also 38 C.F.R. §§ 3.102, 3.156(a), and 3.326(a), VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim, and of what part of that evidence is to be provided by the claimant and what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The record shows that in August 2008 and May 2013 VCAA letters, the appellant was informed of the information and evidence necessary to warrant entitlement to the benefits sought on appeal. The appellant was also advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence. See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). The United States Court of Appeals for Veterans Claims' decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. In this case, the RO provided VCAA notice to the Veteran in August 2008, which was prior to the January 2009 rating decision. Accordingly, the requirements the Court set out in Pelegrini have been satisfied. Further, the notice requirements apply to all five elements of a service connection claim: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the appellant was provided with notice of what type of information and evidence was needed to substantiate the claims for service connection. The August 2008 and May 2013 letters also gave notice of the types of evidence necessary to establish a disability rating and effective date for the disability on appeal. In sum, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice. 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). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). Furthermore, the Board finds that there has been compliance with the assistance provisions set forth in the law and regulations. Service treatment records (STRs) and post service treatment records are associated with the file. Additionally, the Veteran was afforded VA examinations in January 2009, November 2010, and January 2013. It is unfortunate that the Veteran did not report to a VA examination scheduled for May 2013; as a result, additional clarifying medical information which might be beneficial to the Veteran has not been obtained. He was advised of the examination in a May 2013 letter (and email correspondence dated July 2013 notes the Veteran confirmed the time and date of such examination). A subsequent supplemental statement of the case also advised the Veteran that he had failed to report for the examination. He has not responded nor has he otherwise shown good cause for his failure to report. When entitlement to a benefit cannot be established or confirmed without a current VA examination, and a claimant, without "good cause," fails to report for such examination scheduled in conjunction with an original claim, the claim will be decided based on the evidence of record. 38 C.F.R. § 3.655. Thus, the Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c)(4). No additional pertinent evidence has been identified by the claimant. Analysis Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. 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). For secondary service connection to be granted, generally there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). 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 claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has reviewed all the evidence in the Veteran's claims file and in Virtual VA. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. Rather, the Board's analysis will focus specifically on the evidence pertinent to the claim, and what it shows, or fails to show, with respect to the claim. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Right Shoulder The Veteran contends that his right shoulder pain was caused by overcompensation of weight due to the chronic pain in his left shoulder. He stated that he was never seen by any doctor or health care provider, but that he experiences a sharp, chronic pain in the joint of his right shoulder, which worsens when he moves his arm in certain directions. See December 2008 statement. The Veteran's STRs are negative for any complaints, treatment, or diagnoses related to the right shoulder. On May 2007 separation examination, his upper extremities were clinically evaluated as normal. On January 2009 VA examination, the Veteran reported that his right shoulder did not bother him while in service, but that it began to bother him after discharge in association with workouts including push-ups and weightlifting. He stated that the pain is approximately 2/10 normally and increases to approximately 6/10 after a workout. Radiographs of the right shoulder revealed no fracture or dislocation; normal anatomic alignment. The impression was right shoulder overuse syndrome associated with chronic scapular winging. On November 2010 VA examination, the Veteran reported right shoulder pain, inflammation, and flare-ups. He reported starting weight lifting about a month after discharge and noted bilateral shoulder pain. He stated that he stopped lifting for several months and the pain largely resolved, but that when he resumed weight lifting, the pain returned. The examiner noted that the Veteran has previously documented scapular winging. X-rays of the right shoulder revealed soft tissue and the acromioclavicular joint as unremarkable. The findings were negative for fracture and showed normal alignment. The impression was no acute bony abnormality of the bilateral shoulders. A diagnosis of right shoulder overuse syndrome, chronic scapular winging was noted. The examiner opined that the Veteran's right shoulder pain is associated with exercise (weight lifting). He stated that "the right shoulder condition is more likely due to or associated with right shoulder overuse associated with weight lifting involving the right shoulder." In a December 2010 addendum, the examiner noted a review of the Veteran's claims file and medical records. He indicated that he saw no notes related to the right shoulder. A January 2013 VA treatment record noted a report of bilateral shoulder pain, for which the Veteran was not currently being treated. On January 2013 VA examination, only a left shoulder diagnosis was provided. The examiner specifically noted that there was no functional loss for the right upper extremity. The record reflects that the Veteran has a current diagnosis of right shoulder overuse syndrome, chronic scapular winging. What is left for determination is whether this disability is related to service. As noted above, the STRs contain no mention of any complaints, treatment, or diagnoses related to the Veteran's right shoulder. There is otherwise no persuasive evidence to show a nexus of current right shoulder disability to service. With regard to the theory of secondary service connection, the November 2010 VA medical examiner determined that the Veteran's right shoulder disability is more likely due to overuse from weight lifting. The examiner specifically pointed out that the Veteran's right shoulder was normal on X-ray. Further, it was noted that the Veteran himself reported pain from weight lifting post service, which then subsided when he stopped weight lifting. No medical evidence of record contradicts the November 2010 VA examiner's analysis addressing the nature and etiology of the Veteran's current right shoulder disability, or otherwise relates this disability to service. The Board acknowledges the Veteran's statement that his right shoulder pain was caused by overcompensation of weight due to the chronic pain in his left shoulder; however, although he is competent to report the types of symptoms he has experienced and the continuity of such symptoms, determining the etiology of right shoulder pain falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer)." The Board acknowledges that some of the evidence is not entirely clear and that the Board's attempt to obtain medical clarification via examination of the Veteran was not successful due to the Veteran's failure to report. The Board must therefore look to the current evidence of record. After a thorough review of the evidence currently of record, the Board is led to the conclusion that there is not such a state of equipoise of the positive evidence with the negative evidence to permit a favorable determination in this case. 38 U.S.C.A. § 5107(b). The weight of the evidence is against the Veteran's claim for right shoulder disability; the appeal in this matter must be denied. Low Back After a review of the evidence, the Board is unable to find that service connection for low back disability is warranted because there is no medical diagnosis of current low back disability. The Veteran's STRs show an assessment of lumbago in February 2007, for which he was profiled for two weeks. In April 2007, a history of lumbago was noted. On May 2007 separation report of medical history, the Veteran reported back pain; however, significantly, on separation examination, the Veteran's spine was clinically evaluated as normal. On January 2009 VA examination, the Veteran reported that his low back pain began during physical training in service. He stated that it may have begun when he jumped while playing basketball and noted a pop in his back. The Veteran reported that the pain is generally mild, but flares approximately once every two months. The examiner reviewed the Veteran's claims file, including his STRs, and noted a December 2006 notation that the Veteran jumped while playing basketball and the diagnosis was left ankle sprain. Radiographs of the lumbar spine showed the vertebral bodies were well-aligned, and there was no anterior or retrolisthesis and no vertebral body or disc height loss. The examiner provided no current diagnosis regarding the Veteran's back, stating that the Veteran had a "history of lumbago without evidence of current pathology." A January 2013 post service VA treatment record noted the Veteran reported intermittent pain in his lower back, for which he was not currently being treated. The threshold requirement that must be met in order to establish a claim for service connection is that there must be competent evidence (a medical diagnosis) of a current disability (or one that existed on or after the date of application for service connection). See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As the evidence of record shows that the Veteran has no current low back diagnosis, the Board finds that the Veteran does not have a current disability for which service connection can be granted. To the extent that the Veteran reports an in-service injury and continuing pain since then, he is competent to report such. However, there is no medical evidence of any current disability of the low back. Accordingly, as a diagnosis of current low back disability is not shown, a threshold legal requirement for establishing service connection for such disability is not met. Therefore, the benefit of the doubt rule does not apply; the appeal in this matter must be denied. ORDER The appeal is denied as to all issues. ____________________________________________ ALAN S. PEEVY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs