Citation Nr: 1334393 Decision Date: 10/29/13 Archive Date: 11/06/13 DOCKET NO. 08-26 829 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUE Entitlement to service connection for residuals of a right shoulder injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Anthony M. Flamini, Counsel INTRODUCTION The Veteran served on active duty from November 1958 to November 1964, and from February 1981 to April 1995. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, that, in pertinent part, denied entitlement to service connection for residuals of a right shoulder injury. In November 2012, the Board remanded the issue listed on the title page to the Appeals Management Center (AMC) to obtain additional VA and non-VA treatment records dated since January 2008 and to provide the Veteran with a VA examination to determine the likely etiology of his current right shoulder symptomatology. Correspondence dated in December 2012 was mailed to the Veteran requesting that he identify all VA and non-VA healthcare providers who had rendered treatment for his right shoulder disability since January 2008, and he was provided with a VA examination in March 2013. As such, the Board finds that there has been substantial compliance with its November 2012 remand instructions. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders); see Dyment v. West, 13 Vet. App. 141 (1999) (holding that remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with remand directives). The issue of entitlement to an annual clothing allowance has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 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 competent and persuasive evidence of record does not demonstrate that the Veteran's current residuals of a right shoulder injury are causally related to any period of military service or any incident therein, or to any service-connected disability. CONCLUSION OF LAW Residuals of a right shoulder injury were not incurred in or aggravated by military service, nor were they caused or aggravated by any service-connected disability. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2013). 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). 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 any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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. In addition, the notice requirements 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. The notice and assistance provisions should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Board finds that all notification requirements have been met. Prior to the February 2008 rating decision on appeal, correspondence dated in September 2007 advised the Veteran of the foregoing elements of the notice requirements. See Quartuccio, 16 Vet. App. at 187; Dingess/Hartman, 19 Vet. App. at 486. Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim. VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent private treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Here, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained all pertinent active duty service treatment records, Army National Guard treatment records, VA treatment records, and private treatment records. Additionally, the Veteran was afforded a VA examination in March 2013, and an addendum opinion was obtained in April 2013. 38 C.F.R. § 3.159(c)(4). To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The record indicates the March 2013 VA opinion was predicated on a full reading of the Veteran's claims file and consideration of the Veteran's statements. Additionally, the VA examiner provided an adequate rationale for the opinions stated, extensively relying on and citing to the records reviewed. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). As a result, the Board finds the March 2013 VA examination and opinion adequate for purposes of adjudicating the issue on appeal, and VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes that the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). To show 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". Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Under 38 U.S.C.A. § 101(24) "active military, naval, or air service includes active duty, any period of active duty service for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty, or any period of inactive duty training (INACDUTRA) from an injury incurred or aggravated in line of duty during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." In addition, where a Veteran served 90 days or more, and arthritis becomes manifest to a degree of 10 percent or more within one year from the date of separation of service, such disease shall be presumed to have been incurred in or aggravated by 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, 1110, 1112, 1113, 1131 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a). Pursuant to 38 C.F.R. § 3.310 (a) disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. See Evans v. West, 12 Vet. App. 22, 29 (1998) (noting requirements for establishing service connection on a secondary basis). In order to establish a secondary service connection claim, the claimant must show: (1) the existence of a current secondary disability; (2) the existence of a service-connected disability; and (3) evidence that the service-connected disability proximately caused the secondary disability. 38 C.F.R. § 3.310. A claimant may also establish secondary service connection by demonstrating that a current secondary disability was aggravated or worsened by the already worsened by the already service-connected disorder. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (when aggravation of a Veteran's nonservice connected condition is proximately due to or the result of a service-connected condition, such Veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability (but only that degree) over and above the degree of disability as shown prior to the aggravation); Libertine v. Brown, 9 Vet. App. 521, 522 (1996) ( additional disability resulting from aggravation of a nonservice-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.130 (a)). If the claimant succeeds in establishing service connection for a secondary condition, "the secondary condition shall be considered a part of the original condition." 38 C.F.R. § 3.310 (a). VA must give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. See Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("Although interest may affect the credibility of testimony, it does not affect competency to testify."). In consideration of the evidence of record under the laws and regulations as set forth above, the Board concludes service connection is not warranted for residuals of a right shoulder injury. The Veteran asserts that his current shoulder condition was incurred as a result of a bad parachute landing in August 1978 during a period of training in the Army National Guard. He reports that he has experienced continuous right shoulder symptomatology since August 1978 that "subsided, but never went totally away." Army National Guard treatment records confirm that a parachuting-related injury occurred in August 1978. However, the treatment note indicated that the Veteran only injured his left foot upon landing, and then later reinjured his left foot later that evening when his right foot was caught in parachute rope, causing him to fall off the back of a truck. He was hospitalized overnight at Fort McClellan, Alabama, where they iced and elevated his left foot before referring him to the Naval clinic at Pensacola, Florida. He was diagnosed as having a tear of the lateral ligament of the left ankle and a fracture at the base of the third metatarsal of the left foot; significantly, however, there were no complaints or diagnoses of a right shoulder injury. Significantly, on subsequent Reports of Medical History, the Veteran indicated that he was in good health and specifically denied any arthritis, bursitis, or painful shoulders. Similarly, subsequent Report of Medical Examination indicated that the Veteran's upper extremities were within normal limits. Significantly, following service, the Veteran filed claims of entitlement to service connection for several disorders in May 1995 and September 2002; however, right shoulder symptomatology was not mentioned at this time. The Veteran complained of bilateral shoulder pain in a January 2005 treatment note. A March 2005VA orthopedic consultation diagnosed him as having acromioclavicular synovitis of the right shoulder, with X-ray evidence of narrowing of the right acromioclavicular joint. A May 2007 private treatment note indicated that the Veteran was still involved in "hard, heavy manual labor" and that he was cranking a chainsaw earlier in the day, at which time it "felt like something ripped in his right shoulder." The private physician indicated that he "would not be surprised at all if he has an underlying chronic tendinitis and he may now have a focal rotator cuff tear vs further tearing of a pre-existing partial tear." He underwent a right rotator cuff repair in June 2007. The Veteran eventually filed his current claim for entitlement to service connection for a right shoulder disability in August 2007. At that time, he claimed that he injured the shoulder during the parachute jump at Fort McClellan, Alabama, in August 1978. He additionally indicated that his private physician stated that the damage to his right shoulder was approximately 25 to 30 years old. However, a review of the Veteran's private treatment records reveals no such statement. In correspondence received in April 2009, the Veteran elaborated that, following his June 2007 surgery, the private physician told his spouse that the right shoulder injury was 25 to 30 years old. However, in correspondence dated in April 2008, the Veteran's private physician indicated that the Veteran "relates onset of his shoulder symptoms to an incident in the late 1970's or early 1980's when he had a malfunction with a parachute, had multiple injuries including an injury to this shoulder and apparently the shoulder has given him trouble ever since." The private physician told the Veteran that "it is difficult to prove with certainly cause and affect but certainly given that story and the fact that he has had multiple steroid injections in the shoulder and relates onset of symptoms back then and the terrible state that we found his shoulder in when we operated on him in June it is certainly possible that that could have been the start of his problem, could have ruptured his biceps back then, could have had a cuff tear and this all could have been a continuum of that same process." The Veteran was afforded a VA joints examination in March 2013, at which time he was diagnosed as having a right chronic rotator cuff tear status post surgery. However, the examiner opined that this injury occurred after military service and was less likely than not caused by, related to, or aggravated beyond its natural progression due to military service. The examiner based this opinion on the Veteran's service treatment records being silent for diagnosis and treatment of a right shoulder disability. Specifically, the examiner noted that examinations conducted in May 1973, June 1978, February 1981, December 1982, August 1984, December 1984, November 1988 were silent for "trick shoulder or joint condition." Furthermore, the August 17, 1978, treatment note at the time of the parachute accident, as well as follow-up appointments in November 1978, December 1978, and March 1979 dealing with other orthopedic injuries sustained in the accident, were silent for any right shoulder injury or pain. Additionally, the examiner emphasized the May 2007 post-service treatment record indicating that the Veteran partook in hard, heavy manual labor following separation from service and felt like something "ripped" in his right shoulder when using a chainsaw that day. The May 2007 physician diagnosed him as having chronic tendinitis and a possible focal rotator cuff tear as opposed to further tearing of a preexisting partial tear. The March 2013 VA examiner issued an addendum opinion in April 2013, at which time the examiner reiterated that the Veteran's current chronic rotator cuff tear status post surgery was incurred after military service and was not caused by or related to the August 1978 parachuting accident. The examiner also opined that the current chronic rotator cuff tear was less likely than not caused by, related to, or aggravated beyond its natural progression due to any of the Veteran's service-connected disabilities, to include chronic dermatitis, degenerative changes of the left tarsal metatarsal joints, and left pneumothorax. Preliminarily, the Board notes that service connection cannot be granted on a presumptive basis as the evidence indicates degenerative changes were not diagnosed within one year from his separation from service in April 1995. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131; 38 C.F.R. §§ 3.307, 3.309(a). In this respect, the evidence demonstrates a current disability for the purpose of service connection. As indicated above, the Veteran has been diagnosed as having chronic rotator cuff tear of the right shoulder. With respect to an in-service injury, Army National Guard treatment records confirm that the Veteran sustained a left foot injury as a result of his parachuting accidents in August 1978. However, although the Veteran contends that he was also treated for a right shoulder injury following the parachuting accidents, the relevant treatment records do not reveal complaints or diagnoses of right shoulder symptomatology. To the contrary, his Reports of Medical History and Reports of Medical Evaluation expressly deny the existence of symptomatology related to the right shoulder. Concerning a nexus between the Veteran's current disability and his active duty service, there are conflicting medical opinions of record. The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). However, the Court has held that the Board may not reject medical opinions based on its own medical judgment. Obert v. Brown, 5 Vet. App. 30 (1993). In evaluating the probative value of competent medical evidence, the Court has stated that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches. Further, the credibility and weight to be attached to these opinions [are] within the province of the adjudicator. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). As such, the Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Here, the Board finds that the April 2008 correspondence from the Veteran's private physician carries little probative weight. The Board notes the evidence does not show that the private physician reviewed the Veteran's claims file and instead relied on the Veteran's recitation of events, as evidenced by the physician's frequent use of the word "apparently" when describing the Veteran's medical history. The Court has held that a failure to review the claims file renders a VA examination inadequate for rating purposes. See, e.g., Proscelle v. Derwinski, 2 Vet. App. 629, 932 (1992) ("The [VA] examiner should have the Veteran's full claims file available for review."), but see Snuffer v. Gober, 10 Vet. App. 400, 403-04 (1997) (review of claims file not required where it would not change the objective and dispositive findings made during a medical examination); see also 38 C.F.R. §§ 4.1 , 4.2 (2012). However, when contemplating a medical opinion, the relevant inquiry is whether "the examiner providing the report or opinion is fully cognizant of the claimant's past medical history." Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Moreover, the Board may not disregard a favorable medical opinion solely because it was based on a history given by the Veteran. See Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2005). Rather, reliance on a veteran's statements renders a medical report not credible only if the Board rejects the statements of the veteran as lacking credibility. Coburn v. Nicholson, 19 Vet. App. 427 (2006). As discussed below, the Board finds the Veteran not credible with respect to his in-service symptoms and continuity of symptomatology since separation from service. In this respect, the April 2008 private physician correspondence based its opinion on the Veteran's assertion regarding a right shoulder injury in August 1978; however, this statement is not supported by the medical evidence of record. Additionally, the Board finds the private physician's opinion was extremely speculative in nature, as he frequently used the phrase "could have" when formulating his nexus opinion. The Court has held on several occasions that medical evidence that is speculative, general or inconclusive in nature cannot support a claim. See generally Obert v. Brown, 5 Vet. App. 30, 33 (1993); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). By contrast, the Board places significant probative value on the March 2013 VA examination report and the April 2013 addendum opinion. The VA examiner reviewed the Veteran's claims file and cited specific records in support of the opinion. The VA examiner also considered the Veteran's lay statements in providing the rationale. As such, the Board affords the March 2013 VA examination findings significant probative value with respect to whether the Veteran's current right shoulder disability was incurred in or aggravated by active duty. In this respect, the VA examiner opined that it was less likely than not that the current right shoulder condition had its onset during active duty, or that it was caused or aggravated by any of his service-connected disabilities. The Board notes that the Veteran is competent to give evidence about what he experienced. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional); Charles v. Principi, 16 Vet. App. 370, 274 (2002) (finding Veteran competent to testify to symptomatology capable of lay observation); Layno v. Brown, 6 Vet. App. 465, 469 (1994) (noting competent lay evidence requires facts perceived through the use of the five senses). However, the Board finds the statements as to medical causation are not competent evidence to establish service connection for residuals of a right shoulder injury. In this case, the Board finds that the question of whether an in-service injury led to the Veteran's current right shoulder disability does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge. The evidence of record does not otherwise demonstrate that the Veteran possesses the ability, knowledge, or experience to provide a competent etiological opinion that his current right shoulder disability was the result of his military service. Accordingly, the Board finds that these statements as to medical causation are not competent evidence to establish service connection for residuals of a right shoulder injury. Additionally, while the statements are competent evidence as to the presence of right shoulder symptoms, the Board must also determine whether such evidence is credible. First, the Veteran's suggestion of continuity of right shoulder symptomatology since service are contradicted by the medical evidence of record. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (noting that credibility may be impeached by a showing of inconsistent statements or consistency with other evidence), aff'd, 78 F.3d 604 (Fed. Cir. 1996). First, there is no evidence of right shoulder symptomatology in the Army National Guard or active duty service treatment records following the Veteran's August 1978 parachuting accident, even though the Veteran sought treatment for other disabilities during that time period. Additionally, although the Veteran filed service connection claims for other disabilities in May 1995 and September 2002, he did not file a claim of entitlement to service connection for a right shoulder disability until August 2007. For these reasons, the statements presented by the Veteran concerning his right shoulder symptoms since service are not credible evidence. The evidence does not demonstrate that the Veteran complained of or sought treatment for any right shoulder pain in service or in the years following service, and therefore the Board finds the lay statements regarding a chronicity of right shoulder pain in service are not credible. The Board also finds it significant that the first post-service medical evidence of record does not reveal complaints of or treatment for right shoulder pain until 2004 or 2005, approximately 10 years after the Veteran's separation from service and approximately 26 years from the parachuting incident which allegedly caused the right shoulder injury. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (holding that VA did not err in denying service connection when the veteran failed to provide evidence which demonstrated continuity of symptomatology, and failed to account for the lengthy time period for which there is no clinical documentation of his low back condition). Consequently, the Board finds the Veteran's statements regarding his symptomatology are inconsistent and therefore not credible evidence in support of his claim for service connection. As a result, the only competent and persuasive evidence of record does not relate the Veteran's current right shoulder disability to his active duty service. Rather, the VA examiner opined that based on the lack of evidence of a right shoulder injury at the time of the August 1978 parachuting incident and the lack of evidence demonstrating any chronic right shoulder condition during and after service, it was less likely than not that the Veteran's current right shoulder condition had its onset during active duty. This is the only competent etiological opinion of record and is negative to the Veteran's claim. Only competent evidence may be considered to support Board findings. Accordingly, the Board is not free to substitute its own judgment for that of an expert. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In the absence of competent evidence that a current right shoulder disability is related to active duty service, the preponderance of the evidence is against the Veteran's claim. As such, the benefit-of-the-doubt rule does not apply, and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for residuals of a right shoulder injury is denied. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs