Citation Nr: 1330719 Decision Date: 09/25/13 Archive Date: 09/30/13 DOCKET NO. 09-33 722 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for traumatic arthritis of the right hip (right hip disability). 2. Entitlement to service connection for disability of the right shoulder. 3. Entitlement to service connection for disability of the lumbar spine (back disability). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse ATTORNEY FOR THE BOARD Heather J. Harter, Counsel INTRODUCTION The Veteran served on active duty from March 1964 to December 1965. This matter comes before the Board of Veterans' Appeals (Board) from a February 2008 RO decision, denying service connection for the three disabilities at issue. The Veteran presented sworn testimony in support of his appeal during an April 2013 hearing held before the undersigned Veterans Law Judge. Later in the same month, the Veteran and his representative submitted additional medical evidence in support of his appeal, accompanied by a waiver of initial RO review. FINDINGS OF FACT 1. The Veteran's right hip arthritis is at least as likely as not related to service. 2. The evidence of record does not show that a right shoulder disability is related to service. 3. The evidence of record does not show that a lumbar spine disability is related to service. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran's favor, service connection for right hip arthritis is warranted. 38 U.S.C.A. §§ 1110, 5107(West 2002); 38 C.F.R. § 3.303 (2013). 2. Service connection for a right shoulder disability is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 3. Service connection for a lumbar spine disability is not warranted. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends his right hip, right shoulder, and lumbar spine disabilities had their inception in a anti-tank mine explosion in the spring of 1965 in Korea. During both hearings on appeal, he related that the truck he was driving in hit an old mine which then exploded, throwing him to the right, knocking him out for several days and injuring his right hip, right shoulder, and low back. Analysis 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). The Board has thoroughly reviewed all the evidence in the Veteran's claims folder and in his Virtual VA file. 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 submitted by the claimant or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The claimant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). 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). When a chronic disease such as arthritis becomes manifest to a degree of 10 percent within one year of the veteran's discharge from service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the veteran's period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Also see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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. Further, if the disability is of the type for which lay evidence is competent, the Board must then weigh that evidence against other evidence of record in making its determination regarding the existence of service connection. Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed.Cir.2006). With regard to the years-long evidentiary gap in this case between active service and the earliest manifestations of any of the claimed disabilities, the Board notes that a prolonged period 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). The Board must consider all the evidence including the availability of medical records, the nature and course of the disease or disability, the amount of time that elapsed since military service, and any other relevant facts in considering a claim for service connection. Id.; cf. Dambach v. Gober, 223 F.3d 1376, 1380-81 (Fed. Cir. 2000) (holding that the absence of medical records during combat conditions does not establish absence of disability and thus suggesting that the absence of medical evidence may establish the absence of disability in other circumstances). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). Right hip The report of the general medical examination conducted in conjunction with the Veteran's discharge from service reflects the Veteran's own statement that his present health was, "OK, except for a sharp pain in right hip once every two or three days." Upon clinical examination, however, his lower extremities and musculoskeletal system were deemed to have been normal. There is no other indication of any complaints involving his hip, and no record of hospitalization or other treatment for a motor vehicle accident or mine explosion. As discussed below, the VA attempted to obtain records reflecting the hospitalization in Japan after the mine accident, but without success. For the limited purposes of this decision, the Board finds the Veteran's hearing testimony about the vehicle accident in service to be credible. Especially linked with the notation on his separation examination that he was having pain in his right hip, an in-service event affecting his right hip is thus established. Current medical evidence establishes that the Veteran has arthritis in his right hip, which causes limited motion and pain upon use. A November 2011 VA treatment report reflects an assessment of decreased range of motion of the right hip secondary to "prior trauma and disuse." The RO obtained a VA examination and medical opinion in July 2009. The examiner was able to review the Veteran's claims file and medical records in conjunction with the examination. Following a clinical examination and interview of the Veteran, she rendered a diagnosis of traumatic osteoarthritis of the right hip. She also opined that the Veteran's right hip arthritis was at least as likely as not caused by or a result of the injury that he sustained during service. The Board finds that the relatively scanty evidence is in equipoise as to whether the Veteran's currently-shown right hip arthritis is related to service. Under such circumstances, governing law and precedent requires that we must resolve reasonable doubt in the Veteran's favor. The Board therefore holds that with this medical linkage between the 1965 injury and the current disability, service connection for right hip arthritis, as a residual of traumatic injury during service is warranted. The evidence supports (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. The appeal is therefore granted based on this evidence. Right shoulder and lumbar spine The Veteran's service treatment records are entirely negative for any complaints or treatment for his right shoulder or spine. The report of the general medical examination conducted in conjunction with the Veteran's discharge from service reflects that his upper extremities, spine, and musculoskeletal system were deemed to have been normal upon clinical examination, providing evidence against the claim that the accident in service caused a chronic problem. As discussed below, the VA attempted to obtain records reflecting the hospitalization in Japan after the mine accident, but without success. The earliest post-service records contained in the Veteran's claims file are dated many years after service. They reflect, by history, that the Veteran had several work-related injuries after service, although unfortunately the records of actual treatment following these injuries are not available for review. A right shoulder X-ray study performed in September 1993 was interpreted as normal, providing more evidence against this claim. Multiple neurological and orthopedic evaluations of the right shoulder were performed in the late 1990s and early 2000s, with no firm conclusions. He had some relief with neurological medication in 2000 and some degenerative changes were noted upon subsequent evaluations; however, no etiology for his symptoms was identified, and no firm diagnosis was reached. A July 1999 X-ray study was interpreted as showing mild residual deformity of the lateral aspect of the right tenth rib, consistent with healing from remote trauma. A December 2002 neurology report reflects a history of an injury to the right shoulder area about two years prior. The same record reflects that the Veteran had a "very physical job working on heavy equipment," for many years. A February 2006 computed tomography scan reflects that the right scapula and upper back structures were unremarkable. A June 2006 orthopedic record reflects that the Veteran had had an injury at work where he had fallen backward on his back at some point in 1996. Again, tests and studies showed some degenerative changes in the spine. The same June 2006 record shows that degenerative changes in the neck and thoracic spine were described as "age appropriate", providing more evidence against this claim. The Veteran was evaluated by a shoulder specialist in July 2006. The report of this visit reflects "pain and problems now for some time after an injury occurred and he has been unable to resolve this over the last number of years." Unfortunately, this history does not provide any detail as to when, where, or how, the injury occurred. Following clinical examination, the specialist rendered a diagnosis of scapulalgia, and recommended exercises for strengthening the scapular area. Upon careful review of the evidence of record, the Board determines no linkage is shown between the current disabilities involving the Veteran's lumbar spine degenerative disease and his right shoulder complaints and service, to include the mine explosion in which the Veteran is conceded to have been involved. The fact that the Veteran himself did not report any complaints involving his low back or his right shoulder upon his service discharge examination weighs against a finding that he sustained significant injury to either area during the mine explosion/vehicle accident in service. Although the Veteran is competent to testify to the occurrence of the accident in service, and indeed, the Board has accepted his version of these events completely for purposes of this decision, he is not competent to attribute a current medical diagnosis to that particular event, particularly when there is no other evidence, medical or otherwise, supporting a link to this particular accident. Davidson; Jandreau; Buchanan. To the extent that any etiology other than aging, has been identified by the Veteran's medical doctors, it is a workplace injury occurring more than twenty years after service. The length of time between active service and the earliest documentation of either of the claimed disabilities also weighs heavily against the Veteran's claims. Maxson. In this regard, we observe the Veteran testified that he believed he sought treatment from the VA in the early 1980s. However, VA records do not confirm this recollection, as VA records from 1986 reflect treatment for dermatological complaints, but not back or shoulder complaints. The Veteran also testified that he sought treatment from his family doctor within several years of service; however, these records have not been obtained, presumably due to their unavailability. Furthermore, we observe that in his hearing testimony he was quite vague as to his diagnosis(es) and even his complaints at that time. Given the state of the rest of the evidence, this vague testimony and inexact recollection can hardly be viewed as providing strong support for his claims. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). Thus, although the in-service event of a vehicle accident caused by a mine explosion has been established, it is not established that the Veteran sustained any particular injury to his right shoulder or to his lumbar spine during this accident. More importantly, there is evidence against a finding of a chronic problem following the injury, as cited above. In this regard it is significant that X-ray studies of the Veteran's right shoulder have been normal throughout the previous twenty years, and nothing more than age-related degenerative disease is shown in his lumbar spine. Under these circumstances, direct service connection is not warranted. Although (1) the existence of present disabilities involving the Veteran's right shoulder and low back are shown; (2) in-service incurrence or aggravation of a disease or injury is not shown; and, more importantly, (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service is also not shown in the evidence of record. Shedden. In fact, even if the Board assumes that in the accident the Veteran injured his shoulder and back, the best evidence in this case disconnects the current problem to the injury in service more than 40 years ago. As arthritis is not shown within the first post-service year, service connection for arthritis as a chronic disability may not be presumed under law. 38 C.F.R. §§ 3.307, 3.309; Walker. No other basis supporting a grant of service connection for a right shoulder disability or a lumbar spine disability is indicated in the record either. In short, while the limited amount of evidence that supported the first claim provides the basis to find it more likely than not (a 50% chance or greater) that that disability is related to service, the evidence against the other claims makes it less likely (less than 50%) that the other disabilities are related to service. The preponderance of the evidence is against the Veteran's claims and the appeal must be denied regarding the last two claims. 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 December 2007, prior to the initial adjudication of the claims at issue. With regard to the VA examination report which is 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 claim of service connection for a disability involving his right hip. 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). No VA examination or nexus opinion was obtained with regard to the Veteran's right shoulder and low back disabilities. In this case, as explained above, the evidence does not indicate any association between either disability and service, and thus the requirement for an examination was not triggered under governing law and precedent. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010). In Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there must be "medically competent" evidence of a current disability, "medically competent" evidence is not required to indicate that the current disability may be associated with service. Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 1277. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service (as in this case) would not suffice to meet the standards, as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. Here, as the only evidence that the Veteran's claimed disability is related to military service is the conclusory generalized lay statements of the Veteran, which are unsupported by even speculative medical evidence and, as noted above, some evidence against the claim. Accordingly, the Board finds that referral for a VA medical examination is not warranted. With respect to the aforementioned April 2013 Board hearing, the Court held in Bryant v. Shinseki, 23 Vet. App. 488 (2010), that 38 C.F.R. 3.103(c)(2) requires that the RO official or 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. Here, during the hearing, the undersigned Veterans Law Judge specifically noted the bases of the prior determinations or the elements that were lacking to substantiate the service connection claims. The Veterans Law Judge asked specific questions directed at identifying whether any supportive evidence remained outstanding. The Veterans Law Judge also specifically sought to identify any pertinent evidence not currently associated with the claims file. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, 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). In the attempt to support the Veteran's claims for service connection, the RO requested from the National Personnel Records Center, any hospital records pertaining to the Veteran which were generated at either the Yokohama or Tokyo Naval Hospitals. In September 2011, that organization certified that appropriate searches were conducted, no records pertaining to the Veteran were located. Governing regulation requires that VA will end its efforts to obtain records in the custody of a Federal department or agency only if VA concludes that the records sought do not exist or that further efforts to obtain these records would be futile. Such cases include those in which the Federal department or agency advises VA that the requested records do not exist or the custodian does not have them. 38 C.F.R. § 3.159(c)(2). This is such a case, the appropriate repository was searched by the responsible officials, and no records were located. The RO thus concluded in October 2011 that the hospital records pertaining to the Veteran were unavailable, and provided notice to the Veteran the same month. Thus, the Board finds that the VA's duty to assist the Veteran in obtaining all possible relevant service records has been met. 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 records have not been actually associated with his claims file. During the April 2013 Board hearing, the Veteran explained that he had initially sought VA medical care in the 1980s, although such records had not been requested for the file. It was discussed that the Veteran would obtain copies of all pertinent VA medical records dated in the 1980s and would submit them for the file. Later that same month, the Veteran and his representative submitted a stack of medical records, both private records and VA records, along with a waiver of initial RO review. Given the Veteran's demonstrated familiarity with medical issues generally, in conjunction with the assistance of his representative, who is presumed to be familiar with medical records and the standards for relevant, pertinent evidence, the Board is confident that the submitted records are indeed the pertinent ones. Thus, the Board determines that further attempts to obtain complete VA treatment records are not necessary for a thorough and fair review of this case, as it does not appear that these records would be relevant to the matters under consideration here. 38 C.F.R. § 3.159(c)(3). Records reflecting all private medical treatment reported by the Veteran, for which he has provided medical releases have been obtained for the claims file. 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. ORDER Service connection for traumatic arthritis of the right hip is granted, subject to the laws and regulations governing the award of monetary benefits. Service connection for disability of the right shoulder is denied. Service connection for disability of the lumbar spine is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs