Citation Nr: 1330567 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 10-34 430 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to service connection for a disability of the left shoulder, to include as secondary to service-connected lumbar spine disability. 2. Entitlement to service connection for a disability of the right shoulder, to include as secondary to service-connected lumbar spine disability. 3. Entitlement to service connection for a disability of the cervical spine, to include as secondary to service-connected lumbar spine disability. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from January 1979 to May 1986. This matter comes before the Board of Veterans' Appeals' (Board) from a July 2008 RO decision. The Veteran presented sworn testimony in support of his appeal during a May 2013 hearing on appeal held via videoconference. The transcript of the hearing contains multiple inaudible portions. However, the Board finds that the deficiencies of the transcript are not material as the Veteran's contentions are nevertheless clear and understandable, as enhanced by the written contentions contained in the file, and the recollection of the undersigned Veterans Law Judge who presided over the hearing. The issue of entitlement to service connection for a disability of the cervical spine is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran's left shoulder is clinically normal, with no diagnosed disability. 2. The Veteran's right shoulder was normal prior to an October 2007 bicycle accident, when he sustained a Grade 3 dislocation of his right acromioclavicular joint. 3. No currently-shown right shoulder disability was incurred during service, is secondary to a service-connected disability, or is related to service in any other way. CONCLUSIONS OF LAW 1. Absent a current disability involving the left shoulder, there is no valid claim for service connection. 38 U.S.C.A. §§ 1110, 5107(West 2002); 38 C.F.R. § 3.303 (2013). 2. Service connection for a disability of the right shoulder is not warranted. 38 U.S.C.A. §§ 1110, 5107(West 2002); 38 C.F.R. § 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends his shoulder disabilities are related to multiple parachute jumps he participated in during service, either directly, or as proximately caused by his service-connected lumbar spine disabilities. Duties to notify and assist When an application for benefits is received, VA has certain notice and assistance requirements under the law. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). First, proper notice must be provided to a claimant before the initial VA decision on a claim for benefits and must: (1) inform the claimant about the information and evidence not of record 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 VA is also required to inform the Veteran of how the VA assigns disability ratings and effective dates. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This information was provided in a letter mailed to him in November 2007, prior to the initial adjudication of the claims at issue. With regard to the VA examination reports which are of record, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still 'entitled to assume' the competency of a VA examiner and the adequacy of a VA opinion without 'demonstrating why the medical examiners' reports were competent and sufficiently informed'); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). The Board finds that the VA joints examination obtained in this case is adequate to evaluate the Veteran's claims of service connection for disabilities involving his shoulders. The examination report was predicated on a review of the claims folder and the relevant medical records contained therein; contains a description of the history of the disability at issue; and documents and considers the Veteran's complaints and symptoms. The examiner considered the available pertinent evidence of record, and provided a rationale for the opinion rendered, relying on and citing to the records reviewed. Accordingly, the Board finds that the VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Generally, VA medical records are considered to be constructively part of the Veteran's VA claims file as well. Bell v. Derwinski, 2 Vet. App. 611 (1992). In this case, however, careful review of the claims file reveals that some of the Veteran's VA medical have not been actually associated with his claims file. For instance, the file contains references to multiple VA hospitalizations for treatment of psychiatric and substance abuse problems over a period of many years between 1997 and the present. The actual records of these hospitalizations have not been obtained, however. Additionally, a note of January 1998 reflects that a records clerk could not find all of the Veteran's records dated between June 1997 and January 1998, although she had provided all the computerized records she could locate. Review of these records reveals no complaints or findings involving the Veteran's back, neck, or shoulders, however. As discussed below, it does not appear that the Veteran sought medical treatment for his back, neck, or shoulders until many years later in any case, and the Veteran himself has not asserted that further VA treatment records would support his claims. Thus, the Board determines that further attempts to obtain complete VA treatment records are not necessary for thorough and fair review of this case, as it does not appear that these records would be relevant to the matters under consideration here. Especially as the resolution of these claims rests upon a medical nexus opinion, or lack thereof, remanding for additional VA records solely for the sake of completeness is deemed a less than worthy endeavor. 38 C.F.R. § 3.159(c)(3). It appears that the Veteran has in the past, and may currently be receiving disability benefits from the Social Security Administration (SSA). Generally, when a Veteran is receiving disability benefits from SSA, the VA has a duty to consider the same evidence considered by that agency in making any decision regarding entitlement to VA benefits. Murincsak v. Derwinski, 2 Vet. App. 363 (1992). However, the Federal Circuit has clarified that such records are required only when the Board finds there is a reasonable possibility these records are relevant to the Veteran's remaining VA claims. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In this case, the RO obtained a digital copy of SSA records pertaining to the Veteran; however the disc contains very little pertinent evidence and no medical records at all. Thus, it would appear that there are outstanding SSA records. Upon careful review, however, the Board finds no reasonable possibility that these outstanding records would be relevant to the Veteran's service connection claims which are at issue here. Unemployability status, which is the concern of the SSA, is not at issue here. The RO denied a total disability rating based upon individual unemployability in an August 2010 decision and the Veteran did not contest this denial. Furthermore, there is no indication in the medical evidence of record that the Veteran's cervical spine and shoulder disabilities are so severe as to render him unemployable or even to contribute to his unemployability, lending further support to the Board's conclusion that obtaining these records would prove helpful to the Veteran in his claims for service connection. All relevant records and contentions have been carefully reviewed, including all records contained in the Veteran's physical paper file and in his virtual VA electronic file. The Board therefore concludes that the VA's duties to notify and assist have been met with regard to the matter decided herein. Standard of review Once the evidence has been assembled, it is the Board's responsibility to evaluate the record. 38 U.S.C.A. § 7104(a). When there is an approximate balance of 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; 38 C.F.R. § 3.102. In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the Court stated 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 evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Board must consider all the evidence of record and discuss in its decision all "potentially applicable" provisions of law and regulation. See 38 U.S.C. § 7104(a); Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). The Board is also required to provide a statement of reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for its decision, as well as to facilitate further appellate review. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 56 (1990). To comply with this requirement, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Analysis Generally, service connection may be granted for any disability resulting from injury suffered or disease contracted in line of duty, or for aggravation in service of a pre-existing injury or disease. 38 U.S.C.A. § 1110. Service connection may be established by demonstrating that the disability was first manifested during service and has continued since service to the present time or by showing that a disability which pre-existed service was aggravated during service. Service connection may be granted for any disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303. To establish a right to compensation for a present disability on a direct basis, a Veteran must show: "(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 or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury; or, for any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease. 38 C.F.R. § 3.310(a)-(b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Thus, establishing service connection on a secondary basis requires competent evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id. A threshold requirement for the grant of service connection for any disability is that the disability claimed must be shown present. 38 U.S.C.A. §§ 1110, 1131. The Court has interpreted the requirement of current disability thusly: 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. § 1110. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In addition to disease or injury in service, service connection requires competent medical evidence of a current disability. Degmetich v. Brown, 104 F.23d 1328 (1997). Thus, in the absence of proof of a present disability there can be no valid claim. Brammer. Furthermore, a current disability at some point during the appeal period is required for a successful claim for VA benefits. McClain v. Nicholson, 21 Vet. App. 319 (2007). The United States Court of Appeals for the Federal Circuit has held that pain alone, cannot be compensable in the absence of proof of an in-service disease or injury to which the current pain can be connected by medical evidence. Sanchez-Benitez v. Principi, 259 F.3d 1356, 1361 (2001). His service treatment records, the Veteran's spine, neck, and upper extremities were deemed to have been normal upon clinical examination in April 1986, shortly before his discharge from service. The Veteran was given a Parachutist Badge in service and his participation in multiple jumps during service is confirmed by the record. The Veteran initially sought VA medical care in 1997. As noted above, the great bulk of his VA medical records reflect care for psychiatric disabilities and drug treatment. However, the earliest indication of any cervical spine problems recorded in his VA file consists of a March 2005 complaint of pain in his neck. X-rays were taken and interpreted as showing mild cervical spine arthritis and degenerative disc disease. In 2006, the Veteran presented a claim for service connection for orthopedic injury residuals which he claimed were originally caused by his multiple parachute jumps during service. He did not claim problems involving his neck or shoulders at that time. A VA orthopedic examination was conducted in August 2006 pursuant to the claim. The report of the examination reflects that the Veteran had reported being involved in two motor vehicle accidents in 2005, at which time he experienced a whiplash syndrome. His cervical spine and shoulders were not examined at that time as he had not complained of any difficulties in that area. However, the examination report does reflect that his gait was observed to have been normal. The Veteran filed the claim leading to the instant appeal in September 2007. At that time, he asserted that his neck and bilateral shoulder disabilities were secondary to, or proximately caused by his service-connected lumbar spine disability. During the hearing on appeal, however, he clarified that he alternatively claimed a direct relationship to service. The Veteran underwent a VA examination in June 2008 for purposes of identifying all current disability involving the shoulders and obtaining an informed medical opinion as to any secondary relationship. The examiner reviewed the Veteran's VA medical records and claims file, to include the treatment records reflecting an October 2007 bicycle accident wherein the Veteran dislocated his right shoulder. During the examination, the Veteran complained of pain, weakness, stiffness, fatigability, and lack of endurance in both shoulders, although he described the right shoulder as more painful after the bicycle accident. Upon examination, the Veteran had normal range of motion in both shoulders, but pain upon right shoulder motion. There was tenderness over the right acromioclavicular joint. Muscle strength was full in both shoulders. Neurosensory testing was intact. His gait was normal. X-ray studies of the left shoulder were interpreted as, "unremarkable." X-rays of the right shoulder were interpreted as showing a Grade three dislocation of the right acromioclavicular joint with no other abnormality. The examiner rendered a pertinent diagnosis of traumatic grade three dislocation of the right acromioclavicular joint. The examiner also opined that the Veteran's claimed shoulder conditions are not a result of or secondary to his service-connected lumbar spine disability, and that the more likely etiologies for his claimed conditions are age, obesity, deconditioning, heredity, ethnicity, concomitant health issues, subsequent trauma and intercurrent injury, life style choices, and his reported post-service occupation of construction work. During the May 2013 hearing on appeal, the Veteran testified as to his belief that his shoulder disabilities were either incurred during service or were secondary to his service-connected low back problems. He testified that he experiences tightness and pain in both shoulders, especially after working out at the gym, and that his neck and shoulder area as a whole has more tension than it should have. He also testified that no medical care provider has diagnosed a problem with his left shoulder. When asked whether he had been involved in any motor vehicle accidents after service, he replied that he had not. Thus, the recent evidence of record shows that the Veteran has a diagnosis of traumatic Grade three dislocation of the right acromioclavicular joint, and has a normal left shoulder. A VA physician has attributed the dislocation of the right acromioclavicular joint has been attributed to a bicycling accident that the Veteran experienced in 2007. As set forth above, Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. 38 U.S.C. § 1110. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, no present disability involving the Veteran's left shoulder is shown. The Veteran's complaints of pain and tightness in his shoulders have not been attributed to a chronic disability, and indeed, no chronic disability was identified upon an orthopedic examination conducted for the exact purpose of identifying any disability involving the Veteran's shoulders. 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. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999). In this case, the first element required for a grant of service connection is not satisfied, as the Veteran does not have a current disability involving his left shoulder, and has not had a current disability involving his left shoulder at any point during the appeal period. Sheddon, McClain. As such there is not valid claim for service connection and the appeal must be denied. With regard to the Veteran's right shoulder, the only disability identified by medical professionals is the acromioclavicular joint separation resulting from the bicycle accident which occurred approximately seven weeks after the Veteran filed the claim for service connection. No other right shoulder disability is present. As above, the Veteran's own complaints of pain and tightness in his shoulders have not been attributed to a chronic disability, and indeed, no chronic disability was identified upon an orthopedic examination conducted for the exact purpose of identifying any disability involving the Veteran's shoulders. The pertinent medical opinion is against any relationship between the Veteran's low back and any shoulder disability. The preponderance of the evidence is therefore against the Veteran's claim for service connection for a right shoulder disability. In reaching this conclusion, the Board observes that the evidence does not support any injury in service to the Veteran's shoulders, and no complaints involving his shoulders are noted until many years later in 2007, when he filed the instant claim. A prolonged period such as this one, without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Under these circumstances, direct service connection is not warranted. Sheddon. The question of secondary service connection is one which requires medical expertise to answer. Although there is no categorical requirement of " 'competent medical evidence ... [when] the determinative issue involves either medical etiology or a medical diagnosis,' " more than a mere assertion on the part of a claimant is required to establish either a current diagnosis or a nexus between a diagnosis and an event, such as an injury, in service." Davidson v. Shinseki, 581 F.3d at 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007)). "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, 492 F.3d at 1377. In this case, there is no showing that the Veteran is competent to identify the existence of a chronic shoulder disability, and he has not described symptoms which were used to support a later diagnosis by a medical professional; rather the opposite situation occurred. The Veteran described symptoms which were considered by the VA examiner and the examiner still concluded that no left shoulder disability or right shoulder disability other than the acromioclavicular joint separation, was shown. The examiner furthermore concluded that the Veteran's assertion of a secondary relationship was simply incorrect. In short, the preponderance of the evidence is against the Veteran's claims for service connection for right and left shoulder disabilities. The appeal must be denied. ORDER Service connection for a disability of the left shoulder is denied. Service connection for a disability of the right shoulder is denied. REMAND According to his service treatment records, the Veteran's spine and neck were deemed to have been normal upon clinical examination in April 1986, prior to his discharge from service. The recent evidence of record shows that the Veteran has diagnoses of degenerative disc disease of the cervical spine. A VA physician has attributed the cervical spine disease to aging and other post-service etiologies. However, in a June 2013 statement recently added to the record, a chiropractor has presented the opinion that the degenerative process in the Veteran's cervical spine is the direct result of a biomechanical problem in the Veteran's lower back, to include disc involvement at L5-S1. He explained that the cervical spine is compensating because of the pelvic dysfunction and decrease in disc space of the L5-S1, causing the joints of the cervical spine to be out of proper alignment and showing excessive wear. This statement supports the Veteran's claim that his cervical spine problems are related to his service-connected lumbar spine disability. The VA opinion obtained in this case was prior to the June 2013 chiropractor opinion, and thus the VA examiner could not have addressed it. The VA examiner did not render any opinion upon or comment upon any pelvic dysfunction, however. The chiropractor essentially raises a new theory of entitlement, that the Veteran's service-connected lumbosacral spine aggravated his cervical spine problem through his pelvic dysfunction and excessive wear to the cervical spine. Allen. It is not clear whether this action involves the Veteran's gait or represents a separate process. In this regard, we observe that the Veteran's gait was noted to be normal throughout his medical records until the report of the most recent VA examination, conducted for other purposes, in November 2009, when the examiner noted the Veteran's walking was unsteady. In any case, this appeal is not yet ripe for appellate adjudication, as the chiropractor's opinion raises new questions which must be addressed. Therefore, upon remand, further medical evaluation and explanation as to the etiology(ies) of the Veteran's cervical spine disability must be obtained. During the August 2006 VA examination, the Veteran reported that he had been receiving private chiropractor care for the prior two months for his "spine." If his cervical spine was evaluated or treated at this time, the Veteran may wish to release these records to VA for consideration by adjudicators. As the Veteran continues to receive most of his medical care from the VA, however, his VA treatment records pertinent to his cervical and lumbar spine regions should be updated upon remand. Bell. Accordingly, the case is REMANDED for the following action: 1. The RO should obtain all records of VA orthopedic treatment afforded to the Veteran subsequent to July 2008 by the South Texas Veterans Health Care System, and all related VA facilities, for inclusion in the file. 2. The RO should obtain the names and addresses of all medical care providers, to include the two chiropractors referenced above who have treated the veteran for spinal dysfunction since June 2006. After securing the necessary release(s) from the Veteran, the RO should obtain these records for inclusion in the claims file. 3. After obtaining the records requested above, the Veteran's file, to include all electronic records as well as the paper file, should be provided to a VA physician with orthopedic expertise for a written opinion as to whether the current cervical spine disability was either (a) caused by or (b) aggravated by the service-connected lumbar spine disability. The physician should specifically address the June 2013 opinion rendered by the chiropractor. IF the physician deems that further tests or studies would be helpful, or that a clinical examination would be helpful, then such tests, studies, and/or examination should be scheduled. The physician is requested to provide a complete explanation for all conclusions reached. If the physician concludes that the Veteran's lumbar spine disability aggravated or contributed to the Veteran's cervical spine disability in any way, then an estimate of the amount of such contribution is requested, along with an explanation for the estimate rendered. It is requested that all opinions expressed be phrased in terms of whether it is more, less, or equally likely that causation or aggravation occurred. 4. After the development requested above has been completed to the extent possible, the RO should again review the record. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and given the opportunity to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter 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 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). ______________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs