Citation Nr: 1333316 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 04-07 003 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to service connection for a bilateral shoulder disability. REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARINGS ON APPEAL Appellant and Spouse ATTORNEY FOR THE BOARD T. L. Douglas, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from April 1953 to October 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision by the New Orleans, Louisiana, Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran testified at personal hearings before a decision review officer at the RO in October 2003 and before a Veterans Law Judge in May 2005. Copies of the transcripts of those hearings are of record. The issue on appeal has been adequately explained to him and the submission of evidence which he may have overlooked and which would be advantageous to his position has been suggested. See 38 C.F.R. § 3.103(c) (2012). The Board notes that the issue on appeal was clarified in an October 2005 remand and was remanded again for additional development in June 2008. Other issues addressed in June 2008 have either been finally decided or fully resolved in favor of the Veteran. The Board also notes that correspondence dated in March 2013 notified the Veteran that the Veterans Law Judge who conducted his May 2005 hearing was unavailable to participate in the decision for his appeal and of his right to another hearing. He subsequently reported that he did not wish to appear at another hearing. In August 2013, the Board notified the Veteran that an additional medical opinion had been obtained under the provisions of 38 C.F.R. § 20.903 (2012). A copy of the opinion was provided and he was notified that he could submit additional evidence or argument in support of his appeal. He subsequently responded that he had no further argument or evidence to submit and requested the Board immediately proceed with the adjudication of his appeal. 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). FINDING OF FACT A bilateral shoulder disability was not manifest during active service or within the first post-service year, is not shown to have developed as a result of an established event, injury, or disease during active service, and is not shown to have been proximately due to or aggravated by a service-connected disability. CONCLUSION OF LAW A bilateral shoulder disability was not incurred in or aggravated by military service or service-connected disabilities. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION 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). The Veteran was notified of the duties to assist and of the information and evidence necessary to substantiate his claim by correspondence dated in September 2002 and November 2009. The notice requirements pertinent to the issue on appeal have been met and all identified and authorized records relevant to the matter have been requested or obtained. The available record includes service treatment records, VA treatment and examination reports, private medical reports, Social Security Administration (SSA) records, Virtual VA electronic records, lay statements dated in September 2003 and April 2005, and the Veteran's statements and testimony in support of his claim. The development requested in Board remand orders dated in October 2005 and June 2008 has been substantially completed. There is no indication of any additional and sufficiently identified existing pertinent records. Further attempts to obtain additional evidence would be futile. When VA undertakes to provide a VA examination or obtain a VA opinion it must ensure that the examination or opinion is adequate. VA medical opinions obtained in this case are adequate as they are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints and symptoms. The Board notes that an August 2013 VA medical opinion stated that "service medical records document a fall on his back when he slipped working in the Air Force as a mechanic in 1958," but that a review of the record reveals no service report that may be reasonably construed as documenting this injury. The record, however, shows that the Veteran addressed this injury in testimony in October 2003 and May 2005 and in statements provided during medical examinations in July 2008 and October 2005. While the August 2013 examiner appears to have misidentified the source of this information as identified in his summary, the Board finds the error was not prejudicial to the Veteran and that the error does not otherwise indicate the examiner was deficient in thoroughly reviewing the record. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion as to the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4) (2012). The available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to adjudicate the claim would not cause any prejudice to the appellant. Service Connection Claim Service connection may be granted for a disability resulting from injury suffered or disease contracted in line of duty or for aggravation of preexisting injury suffered or disease contracted in line of duty. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Where a veteran is seeking service connection for any disability, due consideration shall be given to the places, types, and circumstances of the veteran's service as shown by the veteran's service record, the official history of each organization in which the veteran served, the veteran's medical records, and all pertinent medical and lay evidence. 38 U.S.C.A. § 1154(a) (West 2002). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a) (effective before and after October 10, 2006). The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that when aggravation of a nonservice-connected condition is proximately due to or the result of a service-connected condition a veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). Effective October 10, 2006, VA regulations were amended to include that any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. It was noted, however, that VA will not concede a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury. 38 C.F.R. § 3.310(b) (effective October 10, 2006); 71 Fed. Reg. 52744 (Sept. 7, 2006) (noting the revision was required to implement the Court's decision in Allen, 7 Vet. App. 439). Service connection can be granted for certain chronic diseases if manifest to a degree of 10 percent or more within one year of separation from active service. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2012). Arthritis is a chronic disease for presumptive service connection purposes. 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, as distinguished from merely isolated findings or a diagnosis including the word chronic. Continuity of symptomatology is required only where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Continuity of symptomatology applies to those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Court, however, has held that even though a disease is not included on the list of presumptive diseases a nexus between the disease and service may nevertheless be established on the basis of direct service connection. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that when a claimed disorder is not included as a presumptive disorder direct service connection may nevertheless be established by evidence demonstrating that the disease was in fact "incurred" during service. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In order to prevail on the issue of service connection on the merits, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Medical evidence is required to demonstrate a relationship between a current disability and the continuity of symptomatology demonstrated if the condition is not one where a lay person's observations would be competent. Clyburn v. West, 12 Vet. App. 296 (1999). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example, a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) Lay evidence presented by a veteran concerning his continuity of symptoms after service may generally be considered credible and ultimately competent, regardless of a lack of contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (2006). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another, provided an adequate basis is provided. Owens v. Brown, 7 Vet. App. 429 (1995). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102 (2012). The pertinent evidence of record includes service treatment records dated in May 1976 that show the Veteran complained of pain in the neck, shoulders, and arms. The examiner noted mild spasm to both trapezius areas and provided a diagnosis of muscle sprain. An earlier January 1976 retirement examination revealed a normal clinical evaluation of the spine and upper extremities. The examiner, however, noted reports of recurrent back pain referred to vague shoulder pain for which the Veteran had never sought treatment. On VA examination in January 1976 the Veteran complained of recurrent pain in the back of his neck extending into the shoulders over the past three years. It was noted that he had not seen a physician, but that a practicing technician in service had given him a muscle relaxant for cramping with no good result. The examiner noted normal range of motion of the cervical spine and shoulders. An X-ray study of the cervical spine revealed normal alignment and curvature. Private treatment records dated in July 1997 provided a diagnosis of myofascial pain secondary to cervical and lumbar trauma which occurred in a motor vehicular accident in 1995 and that he may have had some components prior to that event. There was marked weakness in grip strength and decreased muscle strength in the upper extremity. A November 1997 report noted the Veteran had undergone cervical disc surgeries and that in a 1995 motor vehicle accident he sustained neck and back injuries. An examination revealed decreased shoulder range of motion with forward flexion to 140 degrees on the right and to 110 degrees on the left. Abduction was decreased with motion to 140 degrees on the right and to 120 degrees on the left. VA treatment records dated in February 2000 noted the Veteran was status post cervical surgery for a herniated disc in 1992 and a motor vehicle accident with chronic back pain in 1995. In an August 2002 statement a fellow serviceman, A.A.A., recalled the Veteran had slipped and fallen on his back in 1958. It was noted he had helped take him to the base hospital and that the Veteran had continued back problems while they served together until 1961. In a September 2003 statement J.J.R. also recalled having witnessed the Veteran slip and injure his back during active service. At his personal hearing in October 2003 the Veteran testified that in 1958 he had slipped "in a puddle of oil and fell down on the hanger floor on his tailbone." He reported that from that time he had experienced recurring back and shoulder problems. He stated he went to the hospital on "several occasions." His spouse testified that after his surgery in the early 1990's he began having a lot of problems with his neck and shoulders. At his Board hearing in May 2005 the Veteran testified that he had slipped in service injuring his back, neck, and left shoulder. On VA spine examination in October 2005 the Veteran reported having slipped in oil in 1958. It was noted he stated that "he fell backward striking his buttock and low back ending up in a semi[-]sitting position." On VA joints examination in July 2008 the Veteran reported the onset of shoulder pain in 1970 and stated that the only possible injury to the shoulders had been when he fell on his low back in 1958. He denied any history of direct injury, dislocations, or main shoulder pain. It was noted that X-ray studies in October 2005 revealed right shoulder acromioclavicular joint arthritis and a small radiopaque body and left shoulder mild acromioclavicular arthritis. X-ray examinations of the left and right shoulder performed in July 2008 revealed mild degenerative arthritis in the acromioclavicular joints. The diagnoses included right shoulder acromioclavicular joint arthritis and left shoulder mild acromioclavicular joint arthritis. The examiner, R.P., M.D., found the Veteran's bilateral shoulder acromioclavicular joint arthritis was not caused by or a result of service-connected 1958 lumbar spine strain. As rationale for the opinion the examiner noted that there was no medical record of diagnosis, treatment, nor X-ray study of any shoulder and that the onset of the present disorder was in 1970 when he developed cervical spine pain and radiation to the shoulders. It was further noted that the shoulder complaint was due to the neck disorder and that there is no evidence of direct injury to either shoulder nor history of dislocations. The Board granted entitlement to service connection for cervical and lumbar spine disabilities in September 2009. The Board also remanded the bilateral shoulder disability claim for additional development to include a medical opinion addressing whether a present shoulder disability had been aggravated by a service-connected disability. A September 2009 private medical statement found the Veteran's left shoulder pain was secondary to his cervical spondylosis and cervical radiculopathy. No additional information was provided. In a March 2010 addendum to his July 2008 VA examination report Dr. R.P. noted the prior opinion and summarized the pertinent evidence added to the record. The private medical statement noting the Veteran's left shoulder pain was secondary to his cervical spondylosis and cervical radiculopathy was identified, but it was noted that it was presumed that the private examiner did not have access to the evidence in the claims file. Dr. R.P. found that shoulder acromioclavicular joint arthritis was less likely than not (less than 50-50 percent probability) due to an active duty spine injury. The rationale included that the service treatment records in the claims file indicated shoulder pain with a neck condition and that examinations revealed neck pain to both hands. There were no records of shoulder X-ray studies in service and a mention of a shoulder condition during treatment for neck arthritis in 1992. Dr. R.P. also noted there was no record of chronic treatment for shoulder pain. VA examination in January 2012 found the Veteran had peripheral neuropathy of unclear etiology. It was further noted that there was no evidence of cervical radiculopathy upon present examination. A February 2012 private medical statement noted the Veteran had required multiple surgical procedures for his cervical and lumbar spine disease. It was further noted that he had polyneuropathy and peripheral vascular disease without comment as to etiology. A September 2012 VA medical opinion found that the Veteran had documented cervical disease with bilateral upper extremity radiculitis/radiculopathy/neuropathy. It was noted, in essence, that it was demonstrated by neurological examination and electromyography (EMG) study and was related to nerve root irritation and inflammation from the cervical spine condition. A December 2012 rating decision established service connection for radiculitis of the right and left upper extremities. An August 2013 VA medical expert opinion, in essence, noted the Veteran had been injured after slipping and falling in 1958, but that there was no record of a shoulder injury at that time nor record of an associated examination or X-ray study. It was further noted that he had continued to work for another 18 years in service at his regular job as a mechanic. The examiner, an orthopedic surgeon, also noted that on VA examination in July 2008 the Veteran denied any prior injury to either shoulder and that X-ray studies in 2005 and 2008 had revealed mild arthritis in the shoulders. It was the examiner's opinion that based upon the evidence of record there was no evidence of any injury to either shoulder during active service and no evidence that cervical or lumbar conditions and surgeries for these disorders had any effect to either shoulder after leaving service. The examiner found that the X-ray findings of mild arthritis shown on examination in July 2008 were common to persons of the Veteran's age and reiterated his opinion that there was no shoulder disability related to service nor any shoulder disability due to his cervical or lumbar conditions. Acromioclavicular joint arthritis was found not to be related to service and was not aggravated by his neck or lumbar conditions. Based upon the evidence of record, the Board finds that a bilateral shoulder disability was not manifest during active service or arthritis within the first post-service year, a bilateral shoulder disability is not shown to have developed as a result of an established event, injury, or disease during active service, and is not shown to have been proximately due to a service-connected disability. The March 2010 and August 2013 VA opinions are found to be persuasive that the Veteran's present bilateral shoulder disorders were not caused by or the result of active service nor to have been aggravated by a service-connected disability. The examiners are shown to have considered the evidence of record and to have provided adequate rationale for the etiology opinions provided. The evidence indicates arthritis was first manifest and shown by X-ray examination in 2005, many years after his retirement from active service. The Court has held that statements as to subjective symptomatology alone (such as pain), 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. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), aff'd in part, vacated and remanded in part on other grounds by 259 F.3d 1356 (Fed. Cir. 2001). The Board notes that service connection has been established for right and left upper extremity radiculopathy and that any pain attributable to those disabilities has been resolved in the Veteran's favor. The March 2010 and August 2013 VA medical opinions, however, specifically found that present orthopedic shoulder disorder symptoms were not incurred in or aggravated by service or a service-connected disability. The August 2013 VA examiner is shown to have considered the Veteran's reports as to having had shoulder problems subsequent to his 1958 accident, but to have found the medical evidence of mild arthritis years after service to more likely have developed as a result of aging. The Board further finds that the Veteran is competent to provide evidence as to observations and some medical matters, but that his statements are, at most, conclusory assertions of a nexus between his present shoulder disabilities and service or a service-connected disability. Jandreau, 492 F.3d 1372; Buchanan, 451 F.3d 1331. As questions of medical diagnosis and a relationship to service are complex etiological questions akin to the type of medical matters which laypersons are not competent to provide, his statements are insufficient to establish service connection. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (Board must determine whether claimed disability is type of disability for which lay person is competent to provide etiology or nexus evidence). Therefore, the claim for entitlement to service connection must be denied. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the claim. ORDER Entitlement to service connection for a bilateral shoulder disability is denied. ____________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs