Citation Nr: 1332207	
Decision Date: 10/17/13    Archive Date: 10/21/13

DOCKET NO.  10-18 196A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUE

Entitlement to service connection for a left shoulder disability, to include as secondary to sarcoidosis.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Scott Shoreman, Counsel

INTRODUCTION

The Veteran had active service from July 1979 to September 1992.

This matter comes before the Board of Veterans' Appeals (Board) from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama.

The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing in April 2012.  A transcript is of record.

In June 2013, the Board requested the opinion of a medical specialist from the Veterans Health Administration (VHA).  The requested opinion was received in July 2013.  In September 2013, the Board informed the Veteran and his representative that it had requested a specialist's opinion in conjunction with the adjudication of his appeal, provided them a copy of that opinion and indicated that the Veteran and his representative were entitled to submit additional evidence or argument provided within 60 days of the date of that letter.  In a signed statement, dated later that same month, the Veteran stated that he had no further evidence or argument to present, and in October 2013, his representative offered argument in support of the appeal.  Accordingly, the Board will proceed with the consideration of his case.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDINGS OF FACT

The preponderance of the evidence shows that the Veteran's left shoulder disability was not present in service or until many years thereafter and is not related to service or to an incident of service origin, including to his service-connected sarcoidosis on a causation or aggravation basis.

CONCLUSION OF LAW

A left shoulder disability was not incurred in or aggravated during service and was not proximately due to or the result of a service-connected disability.  38 U.S.C.A. §§ 1110, 1131, 1154(a), 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2013).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). 

Proper notice from VA must inform the claimant of any information and medical or lay 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.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328   (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (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.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486. 

Here, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in November 2007 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter.  The letter informed him of what evidence was required to substantiate the claims and of his and VA's respective duties for obtaining evidence.  The Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content, as to all claims.  With respect to the Dingess requirements, in the November 2007 letter, the RO provided the Veteran with notice of what type of information and evidence was needed to establish disability ratings, as well as notice of the type of evidence necessary to establish an effective date. 

VA also has a duty to assist a Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013).  The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains service treatment, VA treatment records, and private treatment records.  The Veteran had a VA examination in January 2012, and an opinion from a VHA specialist was obtained in July 2013.  Findings from the July 2013 report are adequate for the purposes of deciding the claims on appeal.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  As such, the Board finds that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the claims and no further assistance to develop evidence is required.

The Veteran has been afforded a hearing before a VLJ at which he presented oral argument in support of his claims.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs 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 VLJ noted the basis of the prior determinations and noted the elements that were lacking to substantiate the claims.  In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claim.  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record.  

II.  Service Connection

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an 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.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table).  

Moreover, where a veteran served continuously for ninety (90) days or more during a period of war, or during peacetime service after December 31, 1946, and arthritis becomes manifest to a degree of 10 percent within one year from date of termination of such service, 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.  This presumption is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2013).

In addition to the elements of direct service connection and presumptive service connection, service connection may also be granted on a secondary basis for a disability if it is proximately due to or the result of a service-connected disease or injury.  38 C.F.R. § 3.310(a).  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).  

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, 492 F.3d at 1376-77. 

The Board is charged with the duty to assess the credibility and weight given to evidence.  Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001).  Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability.  Id. at 1076; see also 38 U.S.C.A. § 7104(a) (West 2002).  Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992).  

As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing.  See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996).  

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.  See id. 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 and final 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 service treatment records show that in August 1991 the Veteran complained of pain in the left shoulder of one month's duration that was from bumps previously found on the arm.  On examination there was no swelling, crepitus, or ecchymosis, and range of motion was within normal limits.  He was diagnosed with bicipital tendonitis.  November 1991 treatment records indicate that the Veteran had masses on the left upper arm.  X-rays and a CT scan did not show any pathology and he was diagnosed with tendonitis/bursitis versus arthritis with sarcoid.  It was noted that the shoulder was not a likely source of the sarcoid process.  A January 1992 biopsy of the left arm mass was interpreted to show evidence of chronic inflammation and numerous granulomata consistent with sarcoidosis.  On an April 1992 physical examination the upper extremities were normal.

The post-service treatment records show that the Veteran complained of left shoulder pain at VA treatment beginning in November 2006.  The Veteran testified at the April 2012 hearing that he hurt his shoulder in January 1981 when putting his duffel bag on top of his locker.  The Veteran did not recall further treatment for his shoulder during service and said that he began having problems with his shoulder again around June 2007.  There had not been any post-service injuries or accidents related to the left shoulder.  The Veteran said that he took medication on a daily basis and could not do any heavy lifting.

The Veteran had a VA examination in June 2012.  He reported that he began to have left shoulder symptoms when he hurt himself while lifting a duffel bag.  The Veteran attributed his 1991 left shoulder pain to push ups, and in 1994 he had shoulder pain that was treated with medication.  He described the current pain as achy, intermittent and averaging a rating of three to four out of ten in intensity.  The pain increased with lifting or carrying more than 15 pounds and with abduction of the shoulder to shoulder level.  Pain decreased with resting, hot water soaks and pain medication, and it radiated to the posterior neck.  Flare-ups occurred once a month and lasted for two hours.  On examination there was weakened movement, pain on movement, and atrophy of disuse.  

The examiner opined that the left shoulder disability was less likely than not incurred or caused by an in-service injury, event or illness.  The rationale was that during service the Veteran was diagnosed with bursitis and bursitis/tendonitis with a differential diagnosis of arthritis with sarcoid, with the shoulder not the likely source.  The separation examination showed no evidence of a chronic left shoulder problem, and the Veteran was not evaluated or treated for left shoulder pain until 2005.  The clinical examination findings were most consistent with chronic left shoulder mild impingement and atrophy of the rotator cuff.  

The examiner further opined that the left shoulder disability was less likely than not proximately due to or the result of the Veteran's service connected sarcoidosis.  The rationale was that the current diagnosis was not related to the sarcoidosis the Veteran was treated for during service.  It was noted that arthritis of sarcoidosis is a polyarthritis and is not confined to a single joint.  It was as likely as not that that the left shoulder condition was due to several shoulder sprains with intermittent episodes of inflammation of bursa and tendons of the shoulder.  The June 2012 examination report is inadequate for adjudication purposes because it did not include an opinion regarding whether the left shoulder disability was aggravated by the service-connected sarcoidosis.  See 38 C.F.R. § 3.310; Allen, 7 Vet. App. at 448.

A VA provider reviewed the record in April 2013 in order to provide an opinion on aggravation of the left shoulder disability due to the service-connected sarcoidosis.  Unfortunately, the April 2013 opinion is inadequate because instead of being given on aggravation from a service-connected disability, it was given regarding whether a disability that preexisted service was aggravated therein, which is not applicable.  See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (opinion based upon inaccurate factual premise has no probative value).

In July 2013 an opinion was obtained from a VHA rheumatologist, who opined that the Veteran's chronic left shoulder mild impingement and atrophy of the rotator cuff is not likely to have had its onset within service or within a year of service.  The rationale was that the 1991 in-service complaints were short-lived and that there were no noted signs of shoulder disease, including on x-ray and CT scan.  The separation examination was normal and there were no further complaints of shoulder pain in the record until November 2006, at which time there was conservative treatment.  The rheumatologist concluded that the long interval between the in-service complaints and the documented post-service complaints suggested that the in-service complaints, which were not chronic based on the separation examination, were an isolated acute event without chronicity.

The VHA specialist opined that the chronic left shoulder mild impingement and atrophy of the rotator cuff was not likely to have been caused by sarcoidosis because it did not fit the pattern of arthritis of sarcoidosis, which was generally a polyarthritis patten with and without bone involvement.  The VHA specialist explained that the usual causes of shoulder impingement involve the acromion and space in the shoulder and can be congenital or can result from injuries to the shoulder joint.  There is no evidence of direct involvement of the shoulder by the presented sarcoidosis, and the pathology of sarcoidosis is mediated by direct involvement of the organ system by the disease.  

The VHA specialist further stated that it was not likely that the Veteran's left shoulder disability was aggravated by sarcoidosis.  She noted that sarcoidosis primarily affects the lungs and lymph system and that other organs that are involved include the heart and nervous system.  Arthritis of sarcoidosis is rare and bone involvement is even less common.  Nothing in the file indicates direct involvement by sarcoidosis or its treatment in the left shoulder.  Therefore, it is not likely that sarcoidosis could have a mechanism to aggravate the chronic left shoulder mild impingement with atrophy of the rotator cuff.

The VA rheumatologist's July 2013 opinions are given probative value because she was informed of the pertinent facts, fully articulated the opinions, and supported the opinions with reasoned analyses.  See Nieves-Rodriguez, 22 Vet. App. at 303-04; see also Stefl, 21 Vet. App. at 124.  It is also noted that the post-service treatment records discussed above provide no indication that the Veteran's left shoulder disability is related to service or was caused by or aggravated by sarcoidosis.

In light of the foregoing, the Board finds that the preponderance of the evidence is against entitlement to service connection for left shoulder disability.  In reaching this determination, the Board acknowledges the Veteran's report that his left shoulder disability is related to service or to his service-connected sarcoidosis.  In light of the VHA specialist's opinion, the Board finds the weight of the evidence preponderates against the claim.  The Board concludes that the Veteran's account is less probative because, unlike the VHA specialist, he does not offer a cogent rationale in support of his assessment.  Therefore, probative value cannot be given to the Veteran's statements that his left shoulder disability is related to the in-service incident in which he hurt his shoulder lifting a duffel bag or to the service-connected sarcoidosis on a causation or aggravation basis.  

In addition, the record does not show recurrent symptomatology since service.  The Veteran's testimony from the April 2012 hearing indicates that he did not have problems with his left shoulder between active service and 2007.  The post-service treatment records show complaints relating to the shoulder beginning in November 2006, and the record does not show recurrent symptomatology between the in-service complaints and November 2006.

In sum, the Board finds that the weight of the evidence is against the claim of service connection for a left shoulder disability, to include as secondary to sarcoidosis.  As the preponderance of the evidence is against the claim, the Board must deny service connection and the benefit-of-the-doubt doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. 


ORDER

Service connection for a left shoulder disability, to include as secondary to sarcoidosis, is denied.




____________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs