Citation Nr: 1331817 Decision Date: 10/03/13 Archive Date: 10/07/13 DOCKET NO. 09-11 911 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim of entitlement to service connection for a back disability. 2. Entitlement to service connection for a back disability 3. Entitlement to service connection for a bilateral shoulder disability. 4. Entitlement to service connection for a disability identified as PDMS. REPRESENTATION Appellant represented by: Jan Dils, attorney ATTORNEY FOR THE BOARD T. Stephen Eckerman, Counsel INTRODUCTION The Veteran had active service from February 1977 to March 1980, and from January 1991 to June 1991. This appeal to the Board of Veterans Appeals (Board) arises from a September 2008 rating action by the Regional Office (RO) in Cleveland, Ohio, which determined that new and material evidence had not been presented to reopen a claim of entitlement to service connection for a back abnormality, and which denied claims for service connection for a bilateral shoulder disability, and a disability identified as "PDMS." Jurisdiction over the Veteran's claims file is currently with the RO in Roanoke, Virginia. In his appeal (VA Form 9), received in April 2009, the Veteran indicated that he desired a hearing before a traveling Veterans Law Judge at the RO. However, in a statement, received in May 2013, the Veteran's representative stated that the Veteran did not desire a hearing. FINDINGS OF FACT 1. In an unappealed decision, dated in February 1993, the RO denied a claim for service connection for back pain. 2. The evidence received since the RO's February 1993 decision, which denied a claim of entitlement to service connection for back pain, which was not previously of record, and which is not cumulative of other evidence of record, raises a reasonable possibility of substantiating the claim. 3. The Veteran does not have a back disability, a shoulder disability, or a disability identified as PDMS, that was caused or aggravated by his service. CONCLUSIONS OF LAW 1. New and material evidence has been received since the RO's February 1993 decision which denied a claim for service connection for back pain; the claim for service connection for a back disability is reopened. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2012); 38 C.F.R. § 3.156 (2013). 2. A back disability, a shoulder disability, and a disability identified as PDMS, were not incurred in or aggravated by active military service, nor may arthritis of the shoulders be presumed to be related to service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. New and Material The appellant asserts that new and material evidence has been presented to reopen the claim for service connection for a back disability. In February 1993, the RO denied the Veteran's claim for service connection for back pain. There was no appeal, and the RO's decision became final. See 38 U.S.C.A. § 7105(c). In June 2007, the Veteran filed to reopen the claim. In September 2008, the RO denied the claim. The Veteran has appealed. Rating actions from which an appeal is not perfected become final. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.1103. The governing regulations provide that an appeal consists of a timely filed notice of disagreement in writing and, after a statement of the case has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200 (2012). A final decision cannot be reopened unless new and material evidence is presented. Pursuant to 38 U.S.C.A. § 5108, the Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Kightly v. Brown, 6 Vet. App. 200 (1994). New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2013). Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence had been presented), will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Service connection may also be granted for arthritis, when manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309. With chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. Id. When the disease identity is established (leprosy, tuberculosis, multiple sclerosis, etc.), there is no requirement of evidentiary showing of continuity. Id. For this purpose, a chronic disease is one listed at 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. Feb. 21, 2013) (holding that the term "chronic disease in 38 C.F.R. § 3.303(b) is limited to a chronic disease listed at 38 C.F.R. § 3.309(a)). A grant of service connection under 38 C.F.R. § 3.303(b) does not require proof of the nexus element; it is presumed. Id. As the time of the RO's February 1993 decision, the Veteran's service treatment reports showed that in January 1979, he was treated for complaints of pain in areas that included his back. The assessment was muscle spasm. The Veteran's separation examination report, dated in December 1979, showed that his spine was clinically evaluated as normal. In an associated "report of medical history," he indicated that he did not have a history of recurrent back pain. As for the post-service medical evidence of record at the time of the RO's February 1993 decision, it consisted of a VA examination report, dated in September 1992. This report showed that the Veteran had possible diffuse tenderness in his back, with a full range of motion, and that muscle strength was within normal limits. There was no relevant diagnosis. An associated X-ray report for the lumbar spine was normal. At the time of the RO's February 1993 denial of the claim, there was no competent evidence to show that the Veteran had a back disability, or that a back disability was related to his service. The most recent and final denial of this claim was in February 1993. Therefore, the Board must determine if new and material evidence has been submitted since that time. See 38 U.S.C.A. § 5108. When determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The evidence received since the RO's February 1993 rating decision consists of VA reports, dated between 1999 and 2012. This evidence includes VA disability benefits questionnaire, dated in May 2012, which shows that the Veteran has been diagnosed with lumbar strain. This evidence, which was not of record at the time of the February 1993 decision, is not cumulative, and is "new" within the meaning of 38 C.F.R. § 3.156. At the time of the RO's February 1993 decision, there was no competent evidence of record to show the existence of a back disability. The submitted evidence shows that the Veteran has a back disability. The Board therefore finds that the submitted evidence is both new and material, and that it raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156; see also Shade v. Shinseki, 24 Vet. App. 110 (2010) (38 C.F.R. § 3.159(c)(4) "does not require new and material evidence as to each previously unproven element of a claim."). The claim is therefore reopened. The appeal is granted to this extent only. II. Service Connection The Veteran asserts that he is entitled to service connection for a back disability, a bilateral shoulder disability, and a disability identified as "PDMS." In June 2007, the Veteran filed his claims. In September 2008, the RO denied the claims. The Veteran has appealed. With regard to the Veteran's first period of active duty, service treatment reports show that in January 1979, he was treated for complaints of pain in areas that included his back. The assessment was muscle spasm. In February 1979, he was treated for complaints of a one-year history of "off and on" left shoulder pain. On examination, the shoulder had a full range of motion. The assessment was localized muscle pain. In April 1979, he was treated for complaints of intermittent bilateral shoulder pain. On examination, the shoulders had a full range of motion. The impression noted should pain with a normal examination. The Veteran's separation examination report, dated in December 1979, showed that his spine, and upper extremities, were clinically evaluated as normal. In an associated "report of medical history," he indicated that he did not have a history of recurrent back pain, or a "painful or 'trick' shoulder." He stated, "I am in perfect condition." There is no medical evidence dated between the Veteran's first and second periods of active duty. With regard to the Veteran's second period of active duty, service treatment reports include an entrance examination report, dated in February 1990, which shows that his spine, and upper extremities, were clinically evaluated as normal. In an associated "report of medical history," he indicated that he did not have a history of recurrent back pain, or a "painful or 'trick' shoulder." He indicated that he was in good health and not on any medications. A "Southwest Asia Demobilization / Redeployment Medical Evaluation" report, dated in May 1991, notes a complaint of injuries to the knees and back while in Southwest Asia, with no current treatment or medications. A separation examination report is not of record. A "report of medical history," dated in May 1991, shows that the Veteran indicated that he had recurrent back pain, and a "painful or 'trick' shoulder." The report notes a history of complaints of joint pain "on and off," and that he was not on any medications. As for the post-service medical evidence of record, it consists of VA reports, dated between 1999 and 2012. This evidence shows that in September 2005, the Veteran denied having joint swelling, redness, or pain. A July 2007 report shows that he complained of lower back pain, and that he had fallen the month before while at a picnic after a chair gave way. An August 2007 report shows a complaint of back pain. A number of these reports show that the Veteran reported that he was an electrical contractor, handling cable and satellite work. See e.g., reports, dated in July, August, and December of 2007. A VA joints examination report, dated in April 2008, shows that the examiner stated that the Veteran's medical record had been reviewed, and that it contained no relevant information. The Veteran reported that he did cable television work. He reported that he had experienced bilateral shoulder pain as early as 1977. The report notes that he was not currently receiving any treatment. The diagnosis was recurring bilateral shoulder pain, and it notes that, "no etiology has been established." X-rays were noted to show bilateral degenerative OA (osteoarthritis) of the AC (acromioclavicular) joints. A VA disability benefits questionnaire (DBQ), dated in May 2012, shows that the examiner indicated that the Veteran's claims file had been reviewed. The Veteran reported that he began having bilateral shoulder pain while doing PT (physical training) in 1978. The diagnosis was degenerative joint disease of the shoulders. The examiner concluded that the Veteran's shoulder condition is less likely than not (less than a 50 percent probability) proximately due to or the result of the Veteran's service. The examiner explained the following: the Veteran was seen during service in 1979 for shoulder pain, but on examination his pain was found to be on the border of the scapular area, with no shoulder joint pathology. The Veteran denied any shoulder problems upon "re-enlistment" (in February 1990). He was noted to have reported intermittent shoulder pain upon separation from service in May 1991, but his service treatment reports do not reveal any treatment for shoulder problems. The Veteran did not claim any shoulder problems upon VA examination in September 1992. He has not sought treatment for shoulder symptoms at the Washington VA (medical center). In 2007, he was noted to have a mild limitation of motion of the left shoulder with bilateral AC (acromioclavicular) joint degenerative changes noted in April 2008. Such changes on X-rays are common in the fifth decade of life with normal aging. The examiner concluded: In summary, there is no evidence of any actual shoulder problem while the Veteran was in the service and the first time he complained of such a problem after leaving the service was in 2007, a full 16 years later. He now has degenerative joint disease, which began as only AC joint arthritis and by now involves both glenohumeral joints. But there is no evidence of any shoulder problem or injury while in the service that would have increased his risk for degenerative disease so many years later, and there is certainly no evidence for any chronic shoulder problem of any sort prior to his rather recent complaint in 2007. A VA back DBQ, dated in May 2012, shows that the examiner indicated that the Veteran's claims file had been reviewed. The Veteran reported that he fell and hurt his back during Desert Storm in about 2001, and that he has had pain that never went away. The report notes that arthritis was not documented. The diagnosis was lumbar strain. The examiner concluded that the Veteran's back condition is less likely than not (less than a 50/50 percent probability) caused by or a result of the Veteran's service. The examiner explained the following: The Veteran had some upper thoracic pain in the area of the scapula during his early years in of service, but was not seen for any lower back problems. On entrance examination in 1990, he denied any back problems. Although he stated upon separation from service in 1991 that he had had some back pain while in the service, there are no service treatment records that document any clinical visits for it. The range of motion for the lumbar spine was normal at his first C&P evaluation (in April 2008), and no diagnosis of any back problem was made. Although the Veteran did, when asked directly about pain, state on several occasions in 2007 that he was having mild lower back pain, he has not sought any medical evaluation treatment for it in all the years he has been seen at the DC VA (Washington, D.C. VAMC (VA Medical Center)) and subsequent inquiries about pain have not elicited any mention of back pain. His current exam, given his completely normal X-ray findings, is consistent with acute muscular strain. But the available evidence fails to show any continuity of pain or back complaints since his military service. Intermittent back pain due to acute, self-limited muscular strain at one time or another is an almost universal human experience. If the Veteran had such an episode years ago, whether during military service or not, such an episode would not itself lead to subsequent episodes of back pain in the absence of any underlying spine pathology. As an initial matter, the Board finds that the Veteran is not a credible historian. The Veteran has asserted that he has had shoulder pain since at least 1978. See May 2012 VA DBQ. However, his December 1979 separation examination report shows that his spine, and upper extremities, were clinically evaluated as normal, and in the associated "report of medical history," he indicated that he did not have a history of a "painful or 'trick' shoulder." He further stated, "I am in perfect condition." With regard to the Veteran's second period of active duty, the Veteran's February 1990 entrance examination report shows that his spine, and upper extremities, were clinically evaluated as normal. In an associated "report of medical history," he indicated that he did not have a history of a "painful or 'trick' shoulder." He further indicated that he was in good health and not on any medications. As stated by the May 2012 VA examiner, he was noted to have reported intermittent shoulder pain upon separation from service in May 1991, but his service treatment reports do not reveal any treatment for shoulder problems. The Veteran did not claim any shoulder problems upon VA examination in September 1992, and he denied having joint swelling, redness, or pain in a September 2005 VA progress note. Had the Veteran truly been experiencing chronic shoulder pain since 1978, it would have clearly been in the Veteran's best interest to report such a history to his care providers. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the claimant). Finally, although the Veteran's personnel records do not contain any relevant information, in a July 2007 VA progress note, the Veteran reported that during service, he was disciplined for being AWOL (absent without leave), reduced in rank, and almost given a court martial. See Stringham v. Brown, 8 Vet. App. 445, 448 (1995) (unauthorized absence precludes the performance of military duties and thus cannot constitute a minor offense). Statements against interest tend to be highly reliable, which is why the Board finds this admission probative. See generally Federal Rule of Evidence 804(b)(3); see also Del Rosario v. Peake, 22 Vet. App. 399, 408 (2009) ("[T]he logic of Rule 804(b)(3) of the Federal Rules of Evidence governing statements against interest appears to weigh in favor of the Board's reliance on such statements."). Accordingly, the Board finds that the Veteran is not a credible historian. See Wilson v. Derwinski, 2 Vet. App. 16, 19-20 (1991); Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (in determining whether documents submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant). A. PDMS The Board has determined that the claim must be denied. In June 2007, the Veteran filed a claim for service connection for a disability identified as "PDMS." See Veteran's claim (VA Form 21-4138), received in June 2007. In a duty-to-assist letter, dated in March 2008, the RO requested that the Veteran further identify the claimed disability. There is no record of a response. The Veteran was notified of this in the February 2009 statement of the case, and the supplemental statements of the case, dated in March and July of 2012, nevertheless, there is no record of a submission by him to further identify the claimed disability. The VA progress notes, as well as the VA examination reports, do not show that the Veteran has ever been diagnosed with a disability identified as "PDMS." The Board therefore finds that the preponderance of the evidence shows that the Veteran does not currently have a disability identified as PDMS. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998) (under 38 U.S.C.A. §§ 1110 and 1131, an appellant must submit proof of a presently existing disability resulting from service in order to merit an award of compensation). Accordingly, the claim must be denied. B. Back and Shoulder Disabilities The Board has determined that the claims must be denied. The Veteran's service treatment reports dated his first period of active duty show that he was treated for back pain in January 1979, and that the assessment was muscle spasm. In February 1979, he was treated for complaints of a one-year history of "off and on" left shoulder pain. In April 1979, he was treated for complaints of intermittent bilateral shoulder pain. None of these reports show that the Veteran was noted to have sustained trauma to the back or shoulder. These appear to have been acute conditions, as evidenced by the fact that there was no subsequent treatment during service, and that the Veteran's December 1979 separation examination report showed that his spine, and upper extremities, were clinically evaluated as normal. In addition, in the associated "report of medical history," he indicated that he did not have a history of recurrent back pain, or a "painful or 'trick' shoulder," and he stated, "I am in perfect condition." There is no evidence of treatment between the Veteran's first and second periods of active duty, a period of about ten years. The Veteran's February 1990 entrance examination report shows that his spine, and upper extremities, were clinically evaluated as normal. In the associated "report of medical history," he indicated that he did not have a history of recurrent back pain, or a "painful or 'trick' shoulder." He indicated that he was in good health, and not on any medications. Although he claimed to have sustained an injury to his back in a May 1991 "Southwest Asia Demobilization/Redeployment Medical Evaluation" report, there is no evidence of such an injury, or any other treatment for his spine. With regard to the claim for a back disability, the Veteran is not shown to have been diagnosed with a disorder listed at 38 C.F.R. § 3.309(a) in association with this claim, and the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic 38 C.F.R. § 3.309(a). Walker. Furthermore, the earliest post-service medical evidence of treatment for back symptoms is dated no earlier than 2007, and the earliest post-service medical evidence of a shoulder disorder is dated no earlier than 2008. This is no less than 16 years after separation from the Veteran's second period of active duty. The Veteran has been determined not to be credible, and this lengthy period without treatment is evidence that there has not been a continuity of symptomatology, and it weighs heavily against the claims. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). There is no competent evidence to show that the Veteran has a back disability, or a shoulder disability, that is related to his service. The only competent opinions are found in the May 2012 VA DBQs, and these opinions weigh against the claims. These opinions are considered to be highly probative, as they are shown to have been based on a review of the Veteran's claims files, and they are accompanied by sufficient explanations. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000) (factors for assessing the probative value of a medical opinion include the thoroughness and detail of the opinion); Neives- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Finally, there is no competent evidence to show that arthritis of either shoulder was manifested to a compensable degree within one year of separation from service. See 38 C.F.R. §§ 3.307, 3.309. Accordingly, the Board finds that the preponderance of the evidence is against the claims, and that the claims must be denied. C. Conclusion With regard to the appellant's own contentions, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case, they fall outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In this regard, the Veteran has been shown to have arthritis of the shoulders, and degenerative joint disease is not the type of condition that is readily amenable to mere lay diagnosis or probative comment regarding their etiology, as the evidence shows that X-ray studies and other specific findings is needed to properly assess and diagnose the disorder. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); and Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In any event, the Veteran has been found not to be credible. The issues on appeal are based on the contentions that a disability identified as PDMS, a back disability, and a shoulder disability, are related to his service. The Board is unable to identify the disability identified as PDMS, nor is it shown in the medical evidence. With regard to the claims for a back and shoulder disabilities, the Veteran's service treatment reports and post-service medical records have been discussed. Etiological opinions have been obtained that weigh against the claims. Given the foregoing, the Board finds that the medical evidence outweighs the appellant's contentions to the effect that he has the claimed conditions due to his service. Madden v. Gober, 125 F. 3d 1477, 1481 (Fed. Cir. 1997). The Board has considered the doctrine of reasonable doubt, however, as is stated above, the preponderance of the evidence is against the appellant's claims, and the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. The Veterans Claims Assistance Act of 2000 (VCAA) The Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2013). The notification obligation in this case was accomplished by way of a letter from the RO to the Veteran dated in March 2008. Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F. 3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The RO also provided assistance to the appellant as required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as indicated under the facts and circumstances in this case. The RO has obtained the Veteran's VA medical records. With regard to the claims for a back disability and a bilateral shoulder disability, the Veteran has been afforded an examination, and etiological opinions have been obtained. With regard to the disability identified as PDMS, the Veteran has not been afforded an examination. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifest during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The Veteran's service treatment reports, and the post-service medical evidence, do not show any relevant complaints, treatment, or diagnoses of "PDMS," providing evidence against the claim. There is no competent evidence to show that the Veteran has a disability identified as PDMS that is related to service. Therefore, the first, second, and third McLendon criterion are not satisfied, and an examination and an etiological opinion need not be obtained. McLendon; see also 38 C.F.R. § 3.159(c)(4) (2013); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). The appellant and his representative have not argued that any error or deficiency in the accomplishment of the duty to notify has prejudiced him in the adjudication of his appeal. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful or prejudicial falls upon the party attacking the agency determination). In view of the above, the Board finds that the notice requirements pertinent to the issues on appeal have been met. In summary, the Board finds that the available medical evidence is sufficient for an adequate determination of the claims on appeal. There has been substantial compliance with all pertinent VA laws and regulations and to move forward with this claim does not cause any prejudice to the appellant. Based on the foregoing, the Board finds that the Veteran has not been prejudiced by a failure of VA in its duty to assist, and that any violation of the duty to assist could be no more than harmless error. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). ORDER New and material evidence has been received to reopen the claim for service connection for a back disability, and the appeal, to this extent only, is granted. Service connection for a back disability, a shoulder disability, and a disability identified as PDMS, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs