Citation Nr: 1333606	
Decision Date: 10/24/13    Archive Date: 10/24/13

DOCKET NO.  11-05 541	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUE

Entitlement to service connection for a bilateral shoulder disability.  


REPRESENTATION

Veteran represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

The Veteran and a witness


ATTORNEY FOR THE BOARD

Helena M. Walker, Counsel


INTRODUCTION

The Veteran served on active duty from June 1949 to August 1952.  

This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied service connection. 

The Veteran testified at a Travel hearing before the undersigned Acting Veterans Law Judge (VLJ) in February 2012.  A transcript of the hearing is associated with the claims file. 

In addition to the paper claims files, the Veteran also has an electronic claims file in Virtual VA and VBMS.  The Board has reviewed both the paper and electronic claims files in rendering this decision.

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

The Veteran's claimed bilateral shoulder disability was not first manifest in service, arthritis did not manifest within one year thereafter, and any shoulder disability has not otherwise been shown to be etiologically related to service.


CONCLUSION OF LAW

A back disability was not incurred in or aggravated by service, and arthritis may not be presumed to have been incurred therein.  38 U.S.C.A. §§ 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309, 3.385 (2013).

REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2013). 

In accordance with 38 C.F.R. § 3.159(b)(1), proper 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.  Such notice should also address VA's practices in assigning disability evaluations and effective dates for those evaluations.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Although the required notice should be furnished prior to the issuance of the appealed rating decision, any initial errors of notice will not be prejudicial if: 1) corrective actions (e.g., issuance of a post-adjudication notice letter containing the required information) are taken, and 2) the appeal is readjudicated (e.g., in a Supplemental Statement of the Case).  See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). 

In this case, the Veteran received 38 C.F.R. § 3.159(b) notice in a December 2009 letter, issued prior to the appealed March 2010 rating decision.  In this letter, the Veteran was also notified of VA's practices in assigning disability evaluations and effective dates for service-connected disabilities pursuant to Dingess/Hartman.  Moreover, during the February 2012 Board hearing, the undersigned explained the issues on appeal and asked question designed to elicit evidence that may have been overlooked with regard to the claim.  These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist.  See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010).  There are accordingly no deficiencies of notification in this case, nor has the Veteran argued otherwise.

VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal.  38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013).  This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1).  VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim.  38 C.F.R. § 3.159(c)(4) (2013).

In this case, VA and private medical records concerning the claimed shoulder disability have been obtained to the extent possible, and there is no indication of additional relevant treatment records concerning this disability.  

The Veteran's service treatment records (STRs) are not available.  The Board thus finds that the RO has taken all necessary steps in furtherance of obtaining the Veteran's STRs.  All available service records are contained in the claims file.  See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991) (VA has a heightened obligation to explain findings and carefully consider the benefit-of-the-doubt rule where government records are presumed destroyed).  The Board finds that any further attempts to obtain these records would be futile.  As such, the RO has either obtained, or made sufficient efforts to obtain, records corresponding to all treatment described by the Veteran. 

The Veteran was also most recently afforded fully comprehensive Veterans Health Administration (VHA) records review by a specialist to determine the etiology of his claimed head and back disabilities.  The June 2013 VHA report reflects that the VA specialist reviewed the Veteran's past medical history and provided opinions consistent with the remainder of the evidence of record, and provided sufficient information to evaluate the Veteran's claim.  The Board, therefore, concludes that the VHA report is adequate for purposes of rendering a decision in the instant appeal.  See 38 CF.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 

Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.

Legal Criteria

The Veteran essentially contends that he injured his bilateral shoulders during his active duty service in Korea, and has had bilateral shoulder problems since.  During his February 2012 hearing, the Veteran testified that he was hit by some sort of bullet or shrapnel in the left shoulder.  He indicated that the foreign body in his shoulder did not become embedded.  The Veteran contends that his right shoulder disability is secondary to his left shoulder disability.  Alternatively, he contends hauling 55 gallon drums of gasoline during service caused his bilateral shoulder problems.  In other words, his main contention is that repetitive lifting and the rigors of working in construction during service caused his current shoulder problems.   

Service connection may be granted for a 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(a).  Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). 

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.  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d). 

A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a).  Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  

Also, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active military service. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 

The Veteran has also linked the development of his right shoulder disability as secondary to his left shoulder disability.  Any disability which is proximately due to or the result of a service-connected disease or injury shall be service connected.  See 38 C.F.R. § 3.310 (2013).  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) caused by or (b) aggravated by a service-connected disability.  38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995).

The record reflects that the Veteran participated in combat.  Therefore, the Board notes the potential applicability of 38 U.S.C.A. § 1154(b).  That statute states that for any veteran who has engaged in combat with the enemy in active service during a period of war, satisfactory lay or other evidence that an injury or disease was incurred or aggravated in combat will be accepted as sufficient proof of service connection if the evidence is consistent with the circumstances, conditions, or hardships of such service, even though there is no official record of such incurrence or aggravation.  38 U.S.C.A. § 1154(b) (West 2002).

With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence.  In addressing lay evidence and determining its probative value, if any, attention is directed to both 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").  See Layno v. Brown, 6 Vet. App. 465, 469 (1994). 

As to competency, 38 C.F.R. § 3.159(a)(2) reflects that "competent lay evidence" means any evidence not requiring that the proponent have specialized education training or experience; lay evidence is competent if provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person.  Id.  

In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self-interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness.  See generally Caluza v. Brown, 7 Vet. App. 498 (1995).  The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.  See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006); but see Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). 

Factual Background and Analysis

The Veteran testified that he first sought treatment for his bilateral shoulder problems in 1952.  He is currently diagnosed as having tendonitis of the bilateral shoulders, and recent x-rays have shown degenerative changes in the shoulders.

The Veteran's STRs are unavailable, but the Board finds that the evidence of record demonstrates that his service is consistent with his contentions that he participated in provided support to combat units.  In other words, the Veteran's contentions of a bilateral shoulder injury with pain during combat are accepted under 38 U.S.C.A. § 1154 (b).

The evidence of record shows private treatment for shoulder pain in November 1997.  At that time, he was diagnosed as having muscle aches.  Private treatment records dated in the late-2000s showed the Veteran's complaints of occasional joint pain and swelling.  There were no specific diagnoses related to the bilateral shoulders at that time, nor did the Veteran report any in-service injury to the shoulders or a history of shoulder problems.  

During the Veteran's February 2012 hearing, he testified that he was hit by either shrapnel or a bullet in the shoulder.  He denied that anything was embedded or that he had evidence of a wound in his shoulder.  He stated that he had a fatigue jacket on and "it just ripped a little hole in it and went on, whatever it was."  The Veteran indicated that he believes his bilateral shoulder disability is related to repetitive lifting and construction while in service.  The thought that he first received treatment for his shoulder after service in 1952.  

In April 2012, the Veteran was afforded a VA examination, during which he was diagnosed as having tendonitis in the bilateral shoulders.  He reported that he first hurt his shoulders in service, and the pain has continued since.  X-rays revealed degenerative changes in the bilateral shoulders.  Following review of the claims file, the examiner opined that the Veteran's bilateral shoulder disability was less likely than not related to the claimed in-service injury, event, or illness.  In reaching this conclusion, the examiner noted that there were no complaints for shoulders problems in his STRs, and the Veteran did not have chronic or progressive complaints.  

In January 2013, the Board found that the April 2012 opinions were inadequate for purposes of determining the etiology of the Veteran's bilateral shoulder disability.  The Veteran was afforded another VA examination in February 2013 during which the examiner provided the exact same opinion as in the April 2012 VA examination report.  He added one sentence to his rationale indicating that the Veteran's previous employment as a heavy equipment operator, construction worker, and timber worker would contribute to his shoulder problems.  

Following the inadequate opinion from the February 2013 VA examination, the Board sent the Veteran's claims file to be reviewed by a VHA specialist to provide an opinion as to the etiology of his bilateral shoulder disability.  The specialist was told that the Veteran is presumed to have injured his shoulders in service as alleged, and was asked to provide an opinion.  The specialist opined that the Veteran's bilateral shoulder disability and pain are less likely than not related to any injury sustained or work performed during service.  He indicated that there is no evidence showing that the Veteran was treated for non-penetrating impact to the left shoulder during service, and that his current complaints/pain are consistent with rotator cuff tendonitis and degenerative joint disease of the bilateral shoulders.  

The specialist went on to state that rotator cuff disease and shoulder arthritis is common in elderly patients.  He noted some statistics regarding the likelihood of rotator cuff tears in those over 80 years old (51 percent).  Further, he stated that the fact that the Veteran has "similar subjective and objective findings in [the] bilateral shoulders during his compensation and pension exam from February 2013 likely indicates that this a degenerative process of aging as opposed to being related to an injury while in the service." 

Upon complete review of the record, the Board finds that the competent and credible evidence does not show that the Veteran's bilateral shoulder disability or claimed residuals of a left shoulder injury in service were caused or worsened by his military service.  Even assuming he injured his shoulders during service (either by shrapnel or heavy lifting), as described by the Veteran, the preponderance of the evidence is against a finding that the Veteran has any residual disabilities from that event.  Further, the preponderance of the evidence does not show that the Veteran was diagnosed with arthritis of the shoulders within his first post-service year to warrant service connection on a presumptive basis.  See 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. 

There is no competent and credible opinion linking the Veteran's current bilateral shoulder disability to an event, injury, or disease during service.  Most importantly, the June 2013 VHA report includes a thorough opinion finding no link between the Veteran's current bilateral shoulder disability and his shoulder injuries during service.  The specialist's main rationale for his opinion was that the level of his current bilateral shoulder disability and complaints of pain are more likely due to aging, and are not of nature that they would have had their onset during service.  Given this rationale and the fact that the both the Veteran's claims file and reported history were considered by the specialist, the Board finds the June 2013 opinion to be of very high probative value.  See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (noting that the Board may favor the opinion of a competent medical professional so long as an adequate statement of reasons and bases is provided).

The Board appreciates the assertions made by the Veteran that either a shrapnel injury to the left shoulder and/or the rigors of construction work during service caused his current bilateral shoulder disabilities (to include a right shoulder disability on a secondary basis).  The Board finds, however, that the Veteran is not competent to so report with respect to any current bilateral shoulder disability, nor is he competent to say that any in-service injury caused his current bilateral shoulder tendonitis and degenerative joint disease.  Although shoulder pain and limited movement are matters that can be observed and described by a lay person, a diagnosis of arthritis is not.  Moreover, symptoms such pain and limited motion can be observed and described by a lay person, but diagnosing them as residuals of a specific shoulder injury cannot. 

In addition, the Board finds the statements regarding continuity of symptomatology described by the Veteran to lack credibility.  Although the Board presumes that the Veteran injured his shoulders during service as contended, it is unreasonable to think that if the Veteran underwent as severe of an injury as he contends, that he would not have reported it during private treatment in the 1990s and 2000s.  For the most part, he did not initially report any in-service injury in conjunction with his treatment.  Although he was treated for muscle aches in the mid-1990s, the evidence of record shows that the Veteran was first diagnosed as having a bilateral shoulder disability during his 2012 VA examination.  

That having been noted, the lay contentions of the Veteran are of far less probative value than the June 2013 VA opinion.  First, although the Veteran is competent to report that he sought treatment soon after service for shoulder problems, and he is competent to describe his pain, he is not competent to diagnose arthritis or rotator cuff tendonitis due to a shoulder injury, nor can he identify the date of onset of such disability.  Moreover, he is not competent to attribute any current bilateral shoulder problems to the in-service shoulder injury.  The finding of arthritis of the shoulders requires x-ray evidence, and tendonitis of the shoulders requires more sophisticated testing and evaluation, and the Veteran has not been shown to possess training or credentials in radiology or medicine.  See 38 C.F.R. § 3.159(a)(2).  Second, the June 2013 opinion is more consistent with the evidence of record, insofar as there were no complaints or treatment for shoulder problems between service separation, and his treatment for the same in the 1990s and 2000s.  See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (noting that evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim). 

Because the Board finds that the Veteran is not entitled to service connection for a left shoulder disability, it need not further consider whether a right shoulder disability is warranted on a secondary basis.  

Overall, the Board finds that the preponderance of the evidence is strongly against the conclusion that the Veteran's claimed bilateral shoulder disability is in any way etiologically related to service.  Accordingly, the claims for service connection for these disabilities must be denied.  VA's benefit-of-the-doubt doctrine is not applicable in this case because the preponderance of the evidence is against the Veteran's claims.  38 U.S.C.A. § 5107(b).


ORDER

Service connection for a bilateral shoulder disability is denied.  



____________________________________________
A. C. MACKENZIE
Acting Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs