Citation Nr: 1331335 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 09-33 335 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a back disability. 3. Entitlement to service connection for a prostate disability. 4. Entitlement to service connection for residuals of head trauma. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD M. G. Mazzucchelli, Counsel INTRODUCTION The Veteran served on active duty from October 1987 to October 1997, from May 1998 to February 1999, and from November 2006 to February 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision by the Waco, Texas, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which, in pertinent part, denied entitlement to the service connection claims on appeal. In a March 2013 decision, the Board granted service connection for a left knee disability and remanded the other issues on appeal for additional development. In a July 2013 rating decision, the RO granted service connection for a left thumb disability. The issues remaining on appeal are those listed on the first page of this document. FINDINGS OF FACT 1. The right shoulder muscle strain noted in service in 1993 was acute and transitory, and the Veteran's current right shoulder disability is not related to an inservice cause. 2. The low back strain noted in service in 1989 was noted to have resolved in 1990, and the Veteran's current low back disability is not related to an inservice cause. 3. Prostatitis noted in service in 1994 was noted to have resolved in 1995, and there is no medical evidence of prostatitis at any time thereafter. 4. The Veteran's head injury during service in 1991 did not involve any loss of consciousness; his current reported history of loss of consciousness and continuing symptoms is not credible, and there is no medical evidence of current residuals of head trauma in service. CONCLUSIONS OF LAW 1. The criteria for service connection for a right shoulder disability have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 2. The criteria for service connection for a low back disability have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). 3. The criteria for service connection for prostatitis have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). 4. The criteria for service connection for residuals of head trauma have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. A letter sent in April 2008 satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); 38 C.F.R. § 3.159(b) (1). The letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of a disability rating. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing 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). The Veteran's service treatment records and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c) (2). VA examinations were conducted/opinions obtained in April 2013 and June 2013. The Veteran has not argued, and the record does not reflect, that the examination reports/opinions are inadequate for rating purposes when reviewed in the cumulative. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); see also Dingess/Hartman, 19 Vet. App. at 486. Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In addition, where a veteran served ninety days or more during a period of war or during peacetime after December 31, 1946, and certain diseases, such as arthritis, become manifest to a compensable degree within one year after the veteran's military service ends, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). To establish service connection, there must be competent evidence of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may include statements conveying sound medical principles found in medical treatises. Competent medical evidence may include statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 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. Lay evidence is competent if it is provided by a person who has 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). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In determining whether service connection is warranted for a disability, 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 preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Right Shoulder The service treatment records show that the Veteran was seen with a right shoulder muscle strain after lifting weights in September 1993. He had full range of motion of the right shoulder joint on examination. On VA examination in April 2013, the Veteran reported he injured his right shoulder lifting weights in 1993 and that "since that time it's hard to move my shoulder. I never saw medical, too proud." He reported that he could not put his hand behind his head extending his arm up behind his shoulder. X-rays showed mild degenerative changes of the acromioclavicular joint and glenohumeral joint. The examiner concluded that the Veteran's right shoulder disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed inservice injury. The examiner noted that no chronic right shoulder condition was shown in service. In a June 2013 opinion, a VA physician reviewed the claim file and noted that it was less likely than not that the Veteran's right shoulder disability was caused by or aggravated by his military service. She stated that the Veteran's current right shoulder disability was part of his normal and natural aging process and that this was evident from review of 2009 and 2013 radiological studies. She noted that the muscle strain in service in 1993 was an acute and transitory condition that was conservatively treated with Motrin. She noted that the Veteran had full range of motion at the time of the treatment in 1993 and that he had not required or received any long term care for that condition. She noted that the findings on the April 2013 VA examination of limitation of motion with normal muscle strength and stable shoulder joint were consistent with normal aging. She also noted that the April 2013 X-ray findings of mild degenerative changes, when compared to a normal August 2009 shoulder film series, were also evidence that the current shoulder condition was a result of natural aging and not to his time in service. The opinions of the April 2013 VA examiner and the June 2013 VA physician that the right shoulder muscle strain noted in service in 1993 was acute and transitory, and that the Veteran's current right shoulder disability was less likely as not related to an inservice cause, are uncontradicted in the record. The weight of the medical evidence does not link the Veteran's current right shoulder disability with service. The Veteran has asserted that he incurred a chronic right shoulder disability during his active service. Under certain circumstances lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Jandreau, 492 F.3d at 1372. The Courts have in the past held that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The Board finds that the inservice findings following the muscle strain in 1993, which show that the Veteran had full range of motion of the right shoulder, was conservatively treated with Motrin, and had no further treatment or documented complaints, contradicts his current assertions that he has had problems moving his shoulder since the 1993 muscle strain. Therefore, the statements that he has had a continuity of symptomatology since service are not credible and carry no probative weight. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000). As to a causal relationship between service and his current right shoulder disability, the Veteran is not qualified to offer an opinion because the question of etiology of his right shoulder condition is not lay-observable and requires medical expertise. Degenerative joint disease of the right shoulder was first shown in 2013. Thus, service connection for arthritis on a presumptive basis is not warranted. 38 U.S.C.A. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The preponderance of the evidence is against the claim for service connection for a right shoulder disability. There is no doubt to be resolved; and service connection is not warranted. Back The service treatment records show that the Veteran was seen with mechanical back pain in August 1989. In November 1990 he was noted to be asymptomatic and his low back strain was described as resolved. On VA examination in April 2013 the Veteran reported that he had a lot of back problems in service from carrying ammo bags and weapons in the field. X-rays showed mild anterior osteophytes at L3-4, L4-5, and L5-S1. The impression was mild degenerative disc disease of the lumbar spine, without evidence of compression fracture. The examiner concluded that the Veteran's low back disability was less likely than not (less than 50 percent probability) incurred in or caused by the claimed inservice injury. The examiner noted that the service treatment records noted that the back strain was resolved in service and that no chronic condition of the back was established during active duty or within one year of discharge. The opinion of the April 2013 VA examiner that the back strain noted in service in 1989 and 1990 had resolved in service, and that the Veteran's current lumbar spine disability was less likely as not related to an inservice cause, is uncontradicted in the record. The weight of the medical evidence does not link the Veteran's current low back disability with service. The Veteran has asserted that he incurred a chronic low back disability during his active service. Under certain circumstances lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Jandreau, 492 F.3d at 1372. The Courts have in the past held that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno, 6 Vet. App. 469-70. The Board finds that the inservice findings following the low back strain in 1989 and 1990, which specifically note that the back strain had resolved by November 1990, and the lack of further treatment or documented complaints during later periods of service, contradicts his current assertions that he has had problems with his back since the 1989 muscle strain. Therefore, the statements that he has had a continuity of symptomatology since service are not credible and carry no probative weight. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000). As to a causal relationship between service and his current low back disability, the Veteran is not qualified to offer an opinion because the question of etiology of his low back condition is not lay-observable and requires medical expertise. Degenerative joint disease of the lumbar spine was first shown in 2013. Thus, service connection for arthritis on a presumptive basis is not warranted. 38 U.S.C.A. § 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. The preponderance of the evidence is against the claim for service connection for a low back disability. There is no doubt to be resolved; and service connection is not warranted. Prostate The service treatment records show that the Veteran was treated for prostatitis in November 1994. On follow-up examination in July 1995 his prostatitis was noted to be resolved. On VA examination in April 2013, the Veteran reported that he experiencing blood in his urine on several occasions during service and determined that he was taking too much ibuprofen. He reported that after he stopped taking that medication he had no more problems. The examiner noted that the Veteran's prostatitis was an acute process treated with antibiotics with good results in resolution. "Since there is no documentation in the past 17 years for more exacerbations of prostatitis it is concluded that no chronic condition exists. Two treatments during active duty does not constitute a chronic condition." In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Veteran was treated for acute prostatitis in service in 1994, and this was noted to have resolved in 1995. The record does not show a diagnosis of prostatitis at any time during the appeals period. The VA examiner specifically found that the prostatitis noted during service had resolved therein, and that there was no evidence of chronic prostatitis at any time. To the extent that the Veteran believes he has a prostate disability, the Board notes that a symptom 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, 13 Vet. App. at 285. Although the Veteran is competent to report symptoms, a disability is required in order to establish service connection. Brammer, 3 Vet. App. at 225; see Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, in the absence of evidence of diagnosed prostatitis, the preponderance of evidence is against service connection and the claim is denied. 38 U.S.C.A. § 5107(b). Head Trauma The service treatment records show that in February 1991 the Veteran was struck in the back of the head by tree limbs from a passing truck. At that time, he complained of headaches, but the treatment record noted that he had no loss of consciousness and no vomiting. He was fully alert and oriented and had clear recall of all events. On VA examination in April 2013 the Veteran reported that the tree limb in 1991 "knocked me out and someone actually came to the gate and woke me up. I went to medical, they put an ice pack on me and that's it." He reported current complaints of mild memory loss. The examiner noted that review of the service treatment records showed that there was no loss of consciousness and no abnormalities other than headache after the inservice incident. The examiner found that the Veteran did not meet the criteria for a traumatic brain injury, and that the claimed condition was less likely than not incurred in or caused by inservice injury. The opinion of the April 2013 VA examiner that the current complaints that the Veteran relates to head injury in service were not related to the documented inservice head injury in 1991 is uncontradicted in the record. The weight of the medical evidence does not link the Veteran's current complaints with service. The Veteran has asserted that he has chronic residuals of inservice head injury. Under certain circumstances lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Jandreau, 492 F.3d at 1372. The Courts have in the past held that lay testimony is competent regarding features or symptoms of injury or disease when the features or symptoms are within the personal knowledge and observations of the witness. Layno, 6 Vet. App. 469-70. The Board finds that the inservice findings following the head injury in 1991, which specifically note that the Veteran had no loss of consciousness and no symptoms other than headache, contradicts his current reported history of loss of consciousness and someone waking him up following the incident. Therefore, the statements that he has had a continuity of symptomatology since service are not credible and carry no probative weight. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Maxson v. Gober, 230 F. 3d 1330, 1333 (Fed. Cir. 2000). As to a causal relationship between service and any current problems with memory or other symptoms of head injury, the Veteran is not qualified to offer an opinion because the question of etiology of any such disability is not lay-observable and requires medical expertise. The preponderance of the evidence is against the claim for service connection for head trauma. There is no doubt to be resolved; and service connection is not warranted. ORDER Service connection for a right shoulder disability is denied. Service connection for a back disability is denied. Service connection for a prostate disability is denied. Service connection for residuals of head trauma is denied. ____________________________________________ RONALD W. SCHOLZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs