Citation Nr: 1331360 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 09-20 484 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to service connection for a bilateral shoulder disability, to include a cervical spine disability. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. L. Prichard, Counsel INTRODUCTION The Veteran served on active duty from September 1961 to July 1964. This matter initially came before the Board of Veterans' Appeals (Board) from a December 2006 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In that decision, the RO denied entitlement to service connection for right and left shoulder disabilities and denied the Veteran's petition to reopen claims for service connection for PTSD and major depressive disorder as new and material evidence had not been received. Jurisdiction over the Veteran's claim has remained with the RO in Atlanta, Georgia. In May 2010, the Board granted the petition to reopen the claim for service connection for a psychiatric disability and remanded the underling claim as well as the claim for service connection for a bilateral shoulder disability for further development. In September 2011, the Board remanded these matters for further development. The Veteran testified before the undersigned at a December 2011 videoconference hearing at the RO. A transcript of the hearing has been associated with his claims folder. In December 2012, the Board granted service connection for PTSD and major depression. This is considered a complete grant of the benefit sought on appeal, and this matter is no longer before the Board. The issue of entitlement to service connection for a bilateral shoulder disability to include a cervical spine disability was remanded for further development. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. FINDINGS OF FACT A shoulder disability, to include cervical spine disability, is not the result of a disease or injury in service. CONCLUSION OF LAW A bilateral shoulder disability, to include a cervical spine disability, was not incurred in or aggravated by active service, nor may it be presumed to have been incurred due to service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Proper VCAA notice must inform the claimant of any information and 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. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b)(1) (2013). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In this case, the Veteran was provided with letters in February 2006 and July 2010 that contained all of the notification required by 38 C.F.R. § 3.159, as defined by Dingess and Pelegrini. This letter was provided to the Veteran prior to the initial adjudication of his claims. Although the notification regarding the assignment of disability ratings and effective dates was not received until after the initial adjudication of the claim, this does not result in any harm to the Veteran, as his claim has been readjudicated since receipt of the notification. Mayfield v. Nicholson, 444 F.3d 1328 (2006). The Board concludes that the duty to notify has been met. The duty to assist has also been met. The Veteran's service treatment records have been obtained, including the discharge examination. Private medical records and VA treatment records have also been obtained. The Veteran has offered testimony at a hearing before the undersigned, and a transcript of this hearing is in the record. An attempt to obtain records from the Social Security Administration (SSA) was not successful, but the SSA confirmed that the Veteran's records have been destroyed. He was afforded an appropriate VA examination, and relevant opinions have been obtained from the examiners after a review of the claims folder. The development requested by the February 2012 remand has been completed. As noted above, SSA was contacted, and it was determined that the Veteran's SSA file had been destroyed. The requested VA treatment records were obtained. The Veteran was afforded a VA examination, and the requested opinions were provided. There is no indication that there is any relevant evidence outstanding in these claims, and the Board will proceed with consideration of the Veteran's appeal. The United States Court of Appeals for Veterans Claims has interpreted the provisions of 38 C.F.R. § 3.103(c)(2) (2013) as imposing two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). At the Veteran's hearing the issues were identified, including the evidence needed to substantiate the claim. There was a discussion of possible evidence that could substantiate the claims. The hearing testimony elicited information that lead to the Board's remand. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic disabilities noted in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) The evidence shows that the Veteran currently has degenerative changes (arthritis) in each shoulder. If arthritis becomes manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of arthritis during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997) Service connection is also conceded for chronic diseases shown in service and at any time thereafter. 38 C.F.R. § 3.303(b). The Federal Circuit has held that "[l]ay 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 profession." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence." Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and VA regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). The service treatment records are negative for evidence of complaints or treatment pertaining to the shoulders or cervical spine. The July 1964 separation examination found that the upper extremities and spine were both normal. The Veteran answered "no" to a history of arthritis or rheumatism; bone, joint, or other deformity; and painful or "trick" shoulder or elbow. The initial medical evidence of the Veteran's claimed disability is found in a December 1994 VA treatment record showing that the Veteran complained of left-sided neck pain that radiated into the left shoulder. The impression was degenerative joint disease. No history was reported. He was seen again for back and shoulder pain in February 1995, when he was reported to be a self employed mechanic. In June 1995 the Veteran complained of pain in the neck and shoulders of six months duration. At an August 1995 psychiatric examination, the only medical history consisted of deafness and spinal pain. At a December 1996 psychological assessment, the Veteran reported having trouble with his shoulder, neck, and hip, probably due to severe arthritis. The Veteran testified at the December 2011 hearing that he had injured his shoulders at Fort Gordon, Georgia, when he was trying to put a tractor tire into the back of a truck. He indicated that he did not seek treatment for his shoulders following this injury. Transcript, p. 20. He further indicated that after the initial injury it hurt but healed. Afterwards, it would hurt a little "every now and then". Transcript, p. 19. He first sought treatment for his shoulder pain somewhere between 13 and 15 years ago. Transcript, p. 18. Private medical records from 2013 show that the Veteran received treatment for his right shoulder complaints. A March 2013 x-ray study indicated longstanding complete rotator cuff tear with acromiozation. The Veteran was afforded a VA examination in August 2013. In addition to the in-person examination and interview, the examiner reviewed the Veteran's claims folder. The Veteran reported that he injured his shoulders while trying to move a tractor tire. He did not go on sick call for his injury and he did not have any other injuries to his shoulder while on active duty. Following discharge the Veteran had worked as a mechanic until he retired six or seven years ago. His private examiner recommended he undergo right shoulder surgery. X-ray studies showed degenerative changes of the right shoulder, and mild degenerative changes of the left shoulder. After completion of the examination and record review, the examiner opined that it was less likely than not that the Veteran's bilateral shoulder conditions were caused by or the result of active duty. It was also less likely than not that the Veteran's bilateral shoulder conditions were caused by or the result of a cervical spine disability. The examiner based her opinion on many factors, including the complete lack of medical evidence of an injury to the shoulders or neck in service, and the normal findings on the discharge examination and the Veteran's denial of shoulder problems on the medical history he completed at that time. She also noted that the initial post service evidence of a disability was not until the mid 1990s, and that the Veteran did not claim service connection for this disability at the time that he submitted a claim for other disabilities in 1999. The examiner added that the Veteran never claimed to have sustained a cervical spine disability, only that he experienced cervical spine pain. The examiner also said that there was no way to correlate his current disabilities as having occurred due to the injury in-service instead of his post-service employment as a mechanic, welder, and painter, which were all jobs that required heavy lifting and overhead work. Analysis The current shows that the Veteran has current degenerative changes in both shoulders, and there are diagnoses of degenerative joint disease of the cervical spine. Thus, the requirement that the Veteran have a current disability has been met. The Veteran has provided competent and credible reports of a lifting injury in service. Hence an in-service event is demonstrated. However, the evidence fails to establish a relationship between the incident in service and the current disabilities. Although arthritis or degenerative changes is a chronic disease, the service connection cannot be established on a presumptive basis, because the disease was not demonstrated to compensable degree within one year of service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. There is no evidence of X-ray evidence of arthritis during that period, as would be necessary for a compensable rating. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The Veteran testified that he received no medical treatment in the period immediately following service. Arthritis was also not identified in service. The service treatment records are negative, and the Veteran testified that he received no treatment following his in-service lifting injury. Furthermore, the evidence fails to show continuity of symptomatology between the injury in service and the initial manifestations of the current disability in December 1994. While the Board finds the Veteran's reports of an injury in service to be credible, he denied having or having ever had a shoulder disability on his July 1964 Report of Medical History at separation from service. He has said that he did not seek treatment for his shoulder following the injury, and he testified that he experienced some healing after the initial injury with only a small amount of pain "every now and then" over the years. He further testified that he was unsure whether the recurrent shoulder symptoms were the same as those he experienced in service after the injury. The Veteran told the June 1995 VA examiner that his shoulder pain had been present for six months, which is consistent with the December 1994 VA treatments that initially show treatment for shoulder pain and his testimony in 2011 that he had been receiving treatment for approximately 15 years. Given the Veteran's denials of shoulder symptomatology at his June 1994 separation and the history of only six months of pain he provided in June 1995, continuity of symptomatology cannot be established on the basis of his statements. Similarly, as the initial medical evidence of shoulder complaints is not until December 1994, the medical records also fail to support continuity of symptomatology. The evidence also fails to otherwise show a nexus between the current disability and service. The only competent medical opinion is the one expressed by the August 2013 VA examiner. She determined that it was less likely than not that there was such a relationship. In determining the probative value to be assigned to a medical opinion, the Board must consider three factors. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The initial inquiry in determining probative value is to assess whether a medical expert was fully informed of the pertinent factual premises (i.e., medical history) of the case. A review of the claims file is not required, since a medical professional can also become aware of the relevant medical history by having treated a Veteran for a long period of time or through a factually accurate medical history reported by a Veteran. Nieves-Rodriguez, 22 Vet. App. at 303-04. The second inquiry involves consideration of whether the medical expert provided a fully articulated opinion. See Id. A medical opinion that is equivocal in nature or expressed in speculative language does not provide the degree of certainty required for medical nexus evidence. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third factor in determining the probative value of an opinion involves consideration of whether the opinion is supported by a reasoned analysis. The most probative value of a medical opinion comes from its reasoning. Therefore, a medical opinion containing only data and conclusions is not entitled to any weight. In fact, a review of the claims file does not substitute for a lack of a reasoned analysis. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). The VA examiner reviewed the Veteran's claims folder, interviewed the Veteran and considered his reports; hence she was fully informed. Her opinion was fully articulated and not equivocal. It was also supported by ample reasons based on the record. To support her opinion, she noted the Veteran's denial of a shoulder disability and other orthopedic complaints at discharge, the long time between discharge and the initial post service evidence of a disability, and the fact that the Veteran's post service occupations each required heavy lifting and overhead work that would impact the shoulders and neck. Her opinion is; therefore, of significant probative value. Nieves-Rodriguez. The only opinion that contradicts the August 2013 opinion is that of the Veteran. While the Veteran is credible, and that he is competent to report symptoms such as pain that he felt at the time of the initial injury or over the years; there is no evidence that he has any specialized medical training, and therefore he is not competent to state that the injury he sustained in service resulted in a chronic disability some time laterm. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Absent competent and credible evidence linking the current disability to service, the preponderance of the evidence is against the claim, reasonable doubt does not arise, and entitlement to service connection is denied. ORDER Entitlement to service connection for a bilateral shoulder disability, to include a cervical spine disability, is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs