Citation Nr: 1329295 Decision Date: 09/12/13 Archive Date: 09/20/13 DOCKET NO. 09-48 714 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to service connection for a right shoulder disorder. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had active duty for training (ACDUTRA) with the Army National Guard (ANG) for periods from September 1984 to September 2004, with additional ANG service throughout that period. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA). In October 2012, the Board remanded the Veteran's claim for additional development of the record. The case has been returned to the Board. The RO/AMC complied with the Board's remand instructions; the Veteran was afforded a VA examination in November 2012, and the report has been associated with the claims file. Stegall v. West, 11 Vet. App. 268, 271 (1998). FINDING OF FACT 1. A right shoulder disorder, diagnosed as rotator cuff tear and osteoarthritis, was not manifest during service; osteoarthritis was not manifested within one year of separation. 2. Right rotator cuff repair and osteoarthritis of the right shoulder are not attributable to service. CONCLUSION OF LAW A right shoulder disorder was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). Service connection may be established under 38 C.F.R. § 3.303(b), if a chronic disease or injury is shown in service, and subsequent manifestations of the same chronic disease or injury at any later date, however remote, are shown, 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. Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). Finally, service connection may also be established for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). This has been interpreted as a three- element test based on nexus: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). In addition to the laws and regulations outlined above, active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled from a disease or injury incurred or aggravated in the line of duty, and any period of INACDUTRA during which the individual concerned was disabled from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(21) and (24); 38 C.F.R. § 3.6(a). ACDUTRA is defined as full-time duty in the Armed Forces performed by Reserves for training purposes, and includes full-time duty performed by members of the National Guard of any State. 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c)(1) (2012). Thus, service connection may be granted for a disability resulting from disease or injury incurred or aggravated while performing ACDUTRA or from an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110, 1131 (2011). The Board notes that only "veterans" are entitled to VA compensation under 38 U.S.C.A. §§ 1110 and 1131. See Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). To establish status as a "veteran" a claimant must serve on active duty; serve on a period of ACDUTRA and incur or aggravate an injury or disease during that period of ACDUTRA; or serve on a period of INACDUTRA and incur or aggravate an injury during that period of INACDUTRA. Biggins v. Derwinski, 1 Vet. App. 474, 478 (1991). Thus, service on active duty alone is sufficient to meet the statutory definition of veteran, however, service on ACDUTRA or INACDUTRA, without more, will not suffice to give one "veteran" status. Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010). In this case, the appellant is service- connected for several disabilities due to his periods of ACDUTRA. Therefore, he has attained veteran status. Certain evidentiary presumptions, such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service are provided by law to assist veterans in establishing service connection for a disability or disabilities. 38 U.S.C.A. § 1112 (West 2002); 38 C.F.R. §§ 3.304(b), 3.306, 3.307, 3.309 (2011). These evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40 (2010) (presumption of soundness and presumption of aggravation not applicable to ACDUTRA); Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (Board did not err in not applying presumptions of sound condition and aggravation to claim where appellant served only on ACDUTRA and had not established any service- connected disabilities from that period). However, for those who have achieved "veteran" status through a prior period of service and claim a disability incurred only during a later period of ACDUTRA, the presumption of soundness applies only when the veteran has been "examined, accepted, and enrolled for service" and where that examination revealed no "defects, infirmities, or disorders." Smith, 24 Vet. App. at 40. In this decision, the Board has considered the lay evidence as it pertains to the issue. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility 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"). "Competent medical evidence" means that which is provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. 38 C.F.R. § 3.159(a)(1). "Competent lay evidence" is any evidence not requiring that the proponent have specialized education, training or experience, but is provided by a person who has the knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). A veteran is competent to report symptoms that he experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470; Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation). The absence of contemporaneous medical evidence is a factor in determining credibility of lay evidence, but lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, consistency with other evidence, and statements made during treatment. Caluza v. Brown, 7 Vet. App. 498 (1995). With respect to evaluating the medical evidence, generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider takes into account such factors as its thoroughness and degree of detail, and whether there was review of the veteran's claims file. Prejean v. West, 13 Vet. App. 444, 448-9 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. 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). Medical evidence that is speculative, general or inconclusive in nature cannot support a claim. Obert v. Brown, 5 Vet. App. 30, 33 (1993); see also Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996). A physician's statement framed in terms such as "may" or "could" is not probative. See Warren v. Brown, 6 Vet. App. 4, 6 (1993). A significant factor to be considered for any opinion is the accuracy of the factual predicate, regardless of whether the information supporting the opinion is obtained by review of medical records or lay reports of injury, symptoms and/or treatment. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case, service connection must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has reviewed all of the evidence in the Veteran's claims folder. 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. Indeed, 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. Post-service evidence reflects right shoulder symptomatology starting in 2005. Private treatment records noted that he slipped and tried to catch himself on his shoulder in August 2005. He heard a pop and had immediate pain and swelling, with subsequent increasing pain and decreased strength. An October 2005 X-ray showed acromioclavicular joint arthritis with a small area of bone-on-bone arthritis and a Type II or Type III acromion. MRI showed a rotator cuff tear, full-thickness. He underwent surgery on the shoulder in January 2006. The post-operative diagnosis was full- thickness rotator cuff tear, right shoulder supraspinatus tendon and glenoid labrum tear. Therefore, a right shoulder disorder is currently shown. Next, the Board notes a single in-service complaint of right shoulder pain during a period of ACDUTRA. Specifically, service treatment records show that the Veteran complained of right shoulder strain in April 1998 after lifting heavy boxes from a trailer and hearing a "pop" in his shoulder. The assessment was "AC joint pain/degeneration vs. sub deltoid bursitis." Therefore, service treatment records reflect an in-service incurrence. As noted above, in August 2005, the Veteran fell and injured his right shoulder. He underwent surgery in January 2006. Evidence contemporaneous to the fall consistently attributed his symptoms to the post-service fall. Of note, he made no reference to any connection between his complaints and service or report any past medical history of the right shoulder related to service at the time of the fall. Moreover, he did not file a claim for benefits until after he fell and injured his right shoulder post-service. The evidence also shows that he was having no shoulder complaints until he fell. Specifically, in a July 2004 private treatment record from an orthopedic group, he complained of other orthopedic symptoms (knee and back) but did not mention his shoulder. It seems reasonable that he would have mentioned any problems with his right shoulder if he was having difficulty at that time, particularly as the physician was rendering an opinion on the Veteran's capability for deployment. In this case, the Board finds that the weight of the evidence demonstrates that he did not experience symptoms of a right shoulder disorder since service but rather developed symptoms after a post-service fall in August 2005. The Veteran did not claim that symptoms of his right shoulder disorder began during service until he filed his current VA disability compensation claim. Such statements made for VA disability compensation purposes are of lesser probative value than his previous more contemporaneous in- service histories and his previous statements made for treatment purposes. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the veteran's statements, it may consider whether self-interest may be a factor in making such statements). It is not disputed that the Veteran was seen with right shoulder complaints on one occasion during a period of ACDUTRA. However, as noted above, he did not report having shoulder problems until he fell in August 2005. Further, while he asserts to having continuous problems with his right shoulder since service, private treatment records reflect no complaints related to the shoulder. The Board has weighed the Veteran's statements as to continuity of symptomatology and finds his current recollections and statements made in connection with a claim for VA compensation benefits to be of lesser probative value than his previous more contemporaneous in-service history and his previous statements made for treatment purposes. For these reasons, the Board finds that the weight of the lay and medical evidence is against a finding of continuity of symptomatology between his current claim and service. While the Board reiterates that he is competent to report symptoms as they come to him through his senses, degenerative joint disease is not the type of disorder that a lay person can provide competent evidence on questions of etiology or diagnosis. Such competent evidence has been provided by the medical personnel who have examined the Veteran during the current appeal and by service records obtained and associated with the claims file. Here, the Board attaches greater probative weight to the clinical findings than to his statements. See Cartright, 2 Vet. App. at 25. As to the issue of medical nexus, the Veteran was afforded a VA examination in November 2012. He reported that his symptoms began in April 1998 while lifting heavy turret tool boxes weighing 80-100 pounds from a truck. He related that he was initially treated with physical therapy and returned to duty after a month. He noted that his right shoulder was without complaint until August 2005 when had a progressive increase in locking and pain of the right shoulder. He denied traumatic injury between April 1998 and September 2005. The Veteran underwent a right rotator cuff repair in January 2006 and complained of mild right shoulder pain. He related that he worked in construction as a foundry worker and that he was right-handed. The VA examiner noted that the Veteran was diagnosed with degenerative arthritis by x-ray. Radiology reports showed post-surgical changes with surgical anchors at the tuberosity head of the humerus and moderate osteoarthritis at the tuberosity head of the humerus, at the acromioclavicular joint, and glenohumeral joint. The diagnosis was degenerative arthritis and status-post rotator cuff repair. The examiner opined that it was unlikely that the April 1998 right shoulder accident would result in any permanent disability, as the Veteran was treated non-operatively and returned to service following physical therapy. The examiner further noted that the Veteran was a construction/foundry worker from service through August 2005. The examiner further opined that, because of the long interval of time, it was unlikely that the August 2005 rotator cuff tear was related to the April 1998 injury. The examiner concluded that it was unlikely that the Veteran's right shoulder disorder was caused or permanently aggravated during service, to include active duty for training and any injury during National Guard service. The examiner went on to state that the Veteran's right shoulder pain was more likely due to degenerative arthritis, which was likely related to the Veteran's age and/or occupation and that the rotator cuff tear was more likely related to the result of chronic attrition (inadequate blood supply) to maintain the integrity of the rotator cuff over time. The examiner further noted that, since the Veteran's uninjured left shoulder has similar degenerative changes and loss of function to the right shoulder, that the current condition of both of the Veteran's shoulders was not related to or exacerbated by his right shoulder injury in service. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). To this end, the Veteran is competent to report his experiences in service and to state that he experiences residual symptoms, including right shoulder pain, but these statements must be weighed against the other evidence of record. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Nonetheless, the Board places higher probative value on the November 2012 VA examiner's opinion. Specifically, the examiner reviewed the claims file, examined the Veteran, and reviewed the pertinent medical literature prior to providing a clear medical opinion that the Veteran's pathology of the right shoulder began after service and was unrelated to the right shoulder strain and acute lifting injury in service. This opinion is reasoned and consistent with the actual factual record and is highly probative. To the extent that the Veteran contends that his rotator cuff repair and osteoarthritis of the right shoulder are related to his lifting strain in service or anything else in service, the probative value of his general lay assertions is outweighed by the specific, reasoned opinion of the November 2012 examiner. The weight of the evidence therefore reflects that his right shoulder disorder is unrelated to service. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011) (noting impropriety of the Board categorically discounting lay testimony and requiring the Board to determine, on a case by case basis, whether a veteran's particular disability is the type of disability for which lay evidence is competent); see also Jandreau at 1377 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). In sum, the current pathology of the right shoulder was not manifest during a period of ACDUTRA. Rather, there was a post-service onset due to a fall in 2005. There is no credible evidence linking the right shoulder disorder to service or to a service-connected disease or injury. For the foregoing reasons, the preponderance of the evidence is against the claim for service connection for a right shoulder disorder. The benefit-of-the-doubt doctrine is therefore not for application, and the appeal is denied. Finally, as provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). When VCAA notice is delinquent or erroneous, the "rule of prejudicial error" applies. See 38 U.S.C.A. § 7261(b)(2) (West 2002). In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in February 2008 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. With respect to the Dingess requirements, in the same letter, the RO provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. With that letter, the RO effectively satisfied the remaining notice requirements with respect to the issue on appeal. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). In determining whether a medical examination be provided or medical opinion obtained, there are four factors to consider: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing an in-service event, injury, or disease, or manifestations during the presumptive period; (3) an indication that the disability or symptoms may be associated with service; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. With respect to the third factor, the types of evidence that "indicate" that a current disorder "may be associated" with service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. McLendon v. Nicholson, 20 Vet. App. 79 (2006). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). First, the claims file contains the Veteran's available service treatment records, reports of private and VA post- service treatment and his own statements in support of his claim. Moreover, the Veteran was afforded a VA examination responsive to the claim for service connection of a right shoulder disorder. The examination was conducted by a medical professional, following thorough examination of the Veteran, solicitation of history, and review of the claims file. The Board finds that the opinion provided is adequate. Additionally, he has not alleged that the examination is inadequate to decide the current claim, so it is presumed to have been adequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. ORDER Service connection for a right shoulder disorder is denied. ____________________________________________ L. HOWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs