Citation Nr: 1335659 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 10-27 811 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a left shoulder disability. 2. Entitlement to service connection for a cervical/lumbar spine disability, to include as secondary to a left shoulder disability. REPRESENTATION Appellant represented by: Lisa A. Lee, Attorney at Law ATTORNEY FOR THE BOARD R.N. Poulson, Counsel INTRODUCTION The Veteran served on active duty from January 1956 to June 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2008 and June 2008 decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The spine issue has been recharacterized as noted on the title page to reflect the Veteran's contentions, the medical evidence, and the procedural history. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. A chronic left shoulder disability did not have its clinical onset in service and is not otherwise related to active duty, and arthritis of the left shoulder was not exhibited within the first post service year. 2. A chronic cervical/lumbar disability did not have its clinical onset in service and is not otherwise related to active duty, and arthritis of the cervical/lumbar spine was not exhibited within the first post service year. CONCLUSIONS OF LAW 1. A left shoulder disability was not incurred or aggravated in service, and arthritis of the left shoulder may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). 2. A cervical/lumbar spine disability was not incurred or aggravated in service, and arthritis of the cervical and/or lumbosacral spine may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's 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 and 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative 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). The VCAA 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, letters dated in November 2007 and March 2008 complied with VA's duty to notify the Veteran with regards to the service connection issues addressed herein. Specifically, this correspondence apprised the Veteran of what the evidence must show to establish entitlement to the benefit, what evidence and/or information was already in the RO's possession, what additional evidence and/or information was needed from the Veteran, what evidence VA was responsible for getting, and what information VA would assist in obtaining on the Veteran's behalf. The letters also notified the Veteran of the criteria for assigning a disability rating and an effective date. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Moreover, the Board finds that VA has complied with its duty to assist the Veteran in the development of his claims. VA has obtained service treatment records (STRs). The Veteran, through his attorney, submitted private treatment records from Mayo Clinic. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. See 38 C.F.R. § 3.159 (c)(2). The Board notes that the Veteran reportedly obtained treatment for his claimed left shoulder and cervical spine disabilities between his 1959 discharge and 2003 (the first evidence of post-service treatment from Mayo Clinic). See May 2010 Statement. In the above noted November 2007 letter, the RO asked the Veteran to complete the appropriate release form so that VA could obtain any identified relevant private treatment records. The Veteran did not respond to the November 2007 letter, did not submit a completed VA Form 21-4142, and did not identify any treatment providers (other than Mayo Clinic). The Board notes that the duty to assist is not always a one-way street. The Veteran has an obligation to assist in the adjudication of his claims. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Additionally, the Veteran was afforded physical examinations in February 2008, April 2013, and June 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations are adequate. The examiners fully examined the Veteran, thoroughly reviewed the claims file, and answered the questions posed by the AOJ. Thus, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. II. Service Connection Service connection may be granted for disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. 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 for any condition listed in 38 C.F.R. § 3.303(b). Any condition not encompassed by Section 3.303 (b) requires a medical nexus. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for any injury or disease diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. Arthritis is a chronic disease for purposes of presumptive service connection. 38 U.S.C.A. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). The applicable presumptive period is one year following separation from service. 38 C.F.R. § 3.307(a)(3). To establish service connection, there must be a competent diagnosis of a current disability; medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Competent medical evidence is 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 include statements conveying sound medical principles found in medical treatises. It also includes 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 is 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). This may include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Additionally, a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Here, the Veteran believes that his currently diagnosed left shoulder, cervical spine, and lumbar spine disabilities resulted from in-service injuries. He claims that a heavy engine fell on his left shoulder in service, which necessitated a month-long hospitalization at the Naval Hospital in Boston. He contends that he continued to suffer from neck and left shoulder problems after service. See May 2010 Statement, November 2010 Examination Report. The Veteran also contends that his back disability is due to wear and tear from heavy lifting during service. Alternatively, he maintains that his cervical and lumbar spine disabilities are related to his left shoulder disability. Service treatment records (STRs) show that, from October to November 1958, the Veteran was hospitalized at the U.S. Naval Hospital in Chelsea, Massachusetts for treatment of left shoulder pain associated with lifting heavy workloads and diagnosed as bursitis. In February 1959, he complained of left shoulder pain and was noted to have calcified subacromial bursitis. X-rays of the left shoulder were negative. The Veteran was hospitalized from February to March 1959 for complaints of left shoulder bursitis, but clinical evaluation was normal and his diagnosis at discharge was changed to anxiety reaction. When examined for separation in June 1959, the spine and remaining musculoskeletal system were reportedly normal. An undated Report of Medical History completed in about 1963 (based on given ages of his parents) for the Navy Reserve reflects that the Veteran had or had had swollen joints; he denied having or having had a painful or "trick" shoulder, arthritis, rheumatism, having worn a brace or back support, or any bone, joint or other deformity. Post-service medical records do not mention left shoulder or cervical spine problems until December 2003 when the Veteran reported neck pain of 7-8 months' duration. The clinician noted that the Veteran's prior medical history included degenerative joint disease especially associated with the neck. The first mention of low back pain is dated in January 2008. In February 2008, the Veteran complained of left gluteal pain that radiated to the back of the leg and the groin area. In May 2008, the Veteran complained of low back pain that he associated with "lumbar fracture." He reported that workers' compensation doctors had ordered an MRI and told him that his back would not get better. The clinician noted that physical therapy had been initiated, "but this stopped as soon as they found out that he was a Worker's Comp related issue." A February 2008 VA examination report reflects the Veteran's account of left shoulder injury during service and continuity of treatment after discharge, to include cortisone shots (the last being 25 years earlier) and physical therapy provided by his private physician at the Mayo Clinic. He reported that the pain had significantly worsened "over the last four years." He had recently taken five months' off from his automobile sales job because of left shoulder pain. X-rays showed severe osteoarthritis of the acromioclavicular joint and extensive remodeling about the humeral head, particularly about the greater tuberosity, both of which the examiner noted "can be seen with impingement." There was also superior migration of the humeral head, marked narrowing of the subacromial space, and mild osteophytosis about the glenoid. The VA examiner diagnosed osteoarthritis of the left shoulder with impingement syndrome. He opined that this disability "is less likely as not caused by or a result of" the in-service acute left shoulder bursitis. The examiner explained that there was no objective data to support a claim that chronic left shoulder disability had its onset during active duty. A November 2010 report from R.D., D.C., indicates that the Veteran reported left shoulder, neck, and low back pain that had been "getting progressively worse through the years." He claimed that neck and left shoulder symptoms began after the 1958 in-service injury, and that since discharge he had "been to the hospital sixty-five times" for left shoulder pain. Dr. R.D. opined that the Veteran had current left shoulder and cervical spine disorders directly related to the 1958 in-service injury. He agreed with the in-service diagnosis of acute bursitis. However, he concluded that the Veteran had also sustained a full thickness tear of the supraspinatus and a partial tear of the infraspinatus during service, and that these disabilities resulted in degenerative arthritis of the left shoulder. He noted the absence of any additional left shoulder trauma. In addition, it was opined that even in the absence of rotator cuff tears, "it is as likely as not that the acute bursitis he was diagnosed with in 1958 has lead to the arthritis he currently has in his left shoulder." No rationale was provided for this opinion. Finally, the doctor concluded that the Veteran's current lumbar spine disability is not service-connected. The Veteran submitted to a VA examination in April 2013. He related the history of his in-service left shoulder injury and reported the development of cervical spine pain approximately six months later. He stated that the left shoulder and neck pain had become progressively worse since 2005, to include a history of injections and multiple physical therapy treatments. The examiner diagnosed degenerative disc disease of the cervical spine and osteoarthritis of the left shoulder with impingement syndrome. She opined that the Veteran's cervical spine and left shoulder disabilities are "less likely than not" caused by or the result of his active duty service. She based this opinion on medical literature review, claims file review, and clinical experience. She noted no objective evidence of either cervical spine complaints or treatment during service or continuity of symptoms. The examiner concluded that the shoulder and neck symptoms "complained of 40+ years later cannot reasonably be connected to active duty service when there are multiple other aging/occupational/daily activity factors in the intervening years." The Veteran submitted to another VA examination in June 2013. He gave a history of working on engines while in the Navy that included "possible wear and tear" on his back. He reported a constant tightness "all the time 6 months after separation" and stated that the condition had become progressively worse. He had not had any treatment aside from a steroid injection two years earlier due to financial difficulty. The examiner diagnosed degenerative disc disease of the lumbar spine. She opined that the Veteran's lumbar spine disability is not related to his military service. She based this opinion on medical literature review, claims file review, and clinical experience. She noted no objective evidence of trauma to the lumbar spine during or within one year of service. She also noted that the Veteran suffered a herniated disc in 2008 as a result of a work-related injury. The examiner opined that there is no objective evidence that the Veteran's lumbar spine disability is caused by or aggravated by his left shoulder disability. As the evidence of record fails to establish clinical manifestations of any arthritis within the applicable time period, the criteria for presumptive service connection on the basis of a chronic disease have not been satisfied. With respect to service connection on a nonpresumptive basis, the STRs clearly document that the Veteran injured his left shoulder during service. However, the objective record shows no injury to the Veteran's neck or low back during service. There is no indication of any neck or low back pain during service. The 1959 separation examination did not demonstrate any left shoulder, neck, or low back pathology. The first documented medical report of left shoulder and neck disabilities came in 2003, 44 years following the Veteran's separation from active duty, while the first documented medical report of a low back disability is dated in 2008. With respect to negative evidence, the fact that there were no records of any complaints or treatment involving the Veteran's neck, left shoulder, and low back for many years weighs against the claims. See Maxson v. West, 12 Vet. App. 453, 459 (1999), affirmed sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (it was proper to consider the veteran's entire medical history, including a lengthy period of absence of complaints). The Veteran claims that he has experienced left shoulder, neck, and back pain ever since service. However, physical examination at service discharge revealed normal upper extremities and spine. The Report of Medical History from about 1963 notes that the Veteran had or had had "swollen or painful joints", but that same document shows that the Veteran denied having or having had a painful or "trick" shoulder, arthritis, rheumatism, having worn a brace or back support, or any bone, joint or other deformity. As the February 2008 VA examiner indicated, the in-service left shoulder problem was described as acute. The Veteran claims treatment for pertinent disability over the years, but there are no records until 2003. When the Veteran is treated in 2003, he notes the history of bursitis, but specified that current left shoulder pain was of recent onset. The same is true of treatment reports for the neck and low back. The Veteran's current statements to the effect that he has experienced continuous left shoulder, neck, and back symptomatology since active service, while competent, are not deemed to be credible. Accordingly, continuity of symptomatology is not established by either clinical evidence or the Veteran's own statements. Additionally, the Board notes that the Veteran filed a claim for entitlement to service connection for a left shoulder disability in October 2007, but a cervical/lumbar spine disability was not one of the conditions for which the Veteran was seeking service connection. If the Veteran truly was suffering from a back problem since service, as he now claims, the Board would expect him to seek treatment or benefits for his back disability at the same time he filed his initial claim. Instead, the Veteran did not seek treatment, or file a claim for, entitlement to service connection for a low back disability until 2008 and for neck problems until 2010. He first mentions the low back disability approximately the same time that he suffered a work-related back injury. The Veteran made no mention of a service injury when he sought treatment for back pain in 2008. The Board does not believe this is a coincidence. In fact, the medical records clearly establish that the Veteran injured his back in a 2008 work-related injury. Indeed, the clinician indicated at that time that the Veteran's symptoms were causally related to a work-related injury. Histories reported by the Veteran for treatment purposes are of more probative value than the more recent assertions and histories given for VA disability compensation purposes. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (lay statements found in medical records when medical treatment was being rendered may be afforded greater probative value; statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). The Board has also considered the Veteran's statements asserting a nexus between his currently diagnosed left shoulder, neck, and back disabilities and his active duty service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issues in this case - whether the Veteran's disabilities are related to service - falls outside the realm of common knowledge or expertise of the Veteran. See Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). With regard to the medical opinions of record, where the Board is presented with conflicting medical evidence, it is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Greater weight may be placed on one medical professional's opinion over another, depending on factors such as reasoning employed by the medical professionals and whether or not, and the extent to which, they reviewed prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994); see also Wensch v. Principi, 15 Vet. App. 362, 36 (2001) (it is not error for the Board to favor the opinion of one competent medical expert over that of another when the Board gives an adequate statement of reasons and bases). In assessing evidence such as medical opinions, the failure of the physician to provide a basis for his opinion goes to the weight or credibility of the evidence in the adjudication of the merits. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998). Other factors for assessing the probative value of a medical opinion are the physician's access to the claims file and the thoroughness and detail of the opinion. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In some cases, the physician's special qualifications or expertise in the relevant medical specialty or lack thereof may be a factor. In every case, the Board must support its conclusion with an adequate statement of its reasoning of why it found one medical opinion more persuasive than the other. Dr. D.C. and the VA examiners each addressed the Veteran's contentions of how he incurred his left shoulder, neck, and back disabilities. Each also reviewed the medical history with respect to the left shoulder, neck, and back since discharge from active service. However, the Board finds the VA examiners' nexus opinions to be more probative. Specifically, Dr. D.C.'s opinion is speculative in nature. A medical opinion based on speculation, without supporting clinical data or other rationale, does not provide the required degree of medical certainty. Bloom v. West, 12 Vet. App. 185, 187 (1999). He merely stated his "belief" that the Veteran sustained rotator cuff tears as a result of the in-service injury, which then resulted in his current left shoulder disability. The Board acknowledges Dr. D.C.'s opinion that the Veteran's left shoulder disability is related to his service irrespective of whether he suffered rotator cuff tears during service. However, he provided no rationale for this opinion. In contrast, the February 2008, April 2013, and June 2013 VA examiners opined that the Veteran's left shoulder, neck, and back disabilities are not related to service. They conducted a review of the claims file, discussed the evidence, and examined the Veteran. The February 2013 VA examiner specifically considered Dr. D.C.'s opinion and provided a rationale for her opinion. There is no indication that the VA examiners were not fully aware of the Veteran's past medical history or that they misstated any relevant fact. Therefore, these opinions are highly probative. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (the opinion of a physician that is based on a review of the entire record is of greater probative value than an opinion based solely on the veteran's reported history). Finally, the record on appeal does not contain any medical evidence suggesting that any current lumbar spine disability can be attributed to the Veteran's active service. Because service connection has not been granted for a left shoulder disability, any further consideration of the issue of entitlement to secondary service connection for a cervical/lumbar spine disability is moot. The preponderance of the evidence is against the service connection claims for left shoulder and cervical/lumbar spine disabilities; there is no doubt to be resolved; and service connection is not warranted. Gilbert, 1 Vet. App. at 57-58. ORDER Entitlement to service connection for a left shoulder disability is denied. Entitlement to service connection for a cervical/lumbar spine disability, to include as secondary to a left shoulder disability, is denied. ____________________________________________ THOMAS J. DANNAHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs