Citation Nr: 1336007	
Decision Date: 11/06/13    Archive Date: 11/13/13

DOCKET NO.  09-24 485	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee


THE ISSUES

1.  Entitlement to service connection for a left shoulder disability.

2.  Entitlement to service connection for a cervical spine disability.

3.  Entitlement to an increased rating for a right knee disability, currently rated at 10 percent. 

4.  Entitlement to an increased rating for a left knee disability, currently rated at 10 percent.


REPRESENTATION

Appellant represented by:	American Legion




ATTORNEY FOR THE BOARD

J. Castillo, Associate Counsel
 

INTRODUCTION

The Veteran served on active duty from March 1972 to September 1988. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of a February 2008 rating decision of the Department of the Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which denied increased ratings in excess of 10 percent for the Veteran's left and right knee disabilities, and a May 2007 decision of the VA RO in Nashville, Tennessee, which denied service connection for a left shoulder disability and a cervical spine disability.
 
The Veteran requested a hearing before a member of the Board.  She was notified of her scheduled July 2010 hearing by letter in June 2010, but did not attend the hearing or subsequently request a new hearing.  Her hearing request is deemed withdrawn. 

In a June 2010 statement, the Veteran withdrew her claims for entitlement to service connection for a sciatic nerve disability and a bladder control disability; these issues are no longer on appeal.

The evidence of record raises a claim for an increased rating for the Veteran's service-connected lumbar spine disability due to neurological abnormalities.
This claim is referred to the RO for appropriate action. 

The issues of service connection for a cervical spine disability and increased ratings for left and right knee disabilities are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

A left shoulder disability was not shown in active service or within one year after discharge, and there is no competent evidence of a link between the Veteran's left shoulder disability and her active service.


CONCLUSION OF LAW

The criteria for service connection for a left shoulder disability have not been met. 38 U.S.C.A. § 1101 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2013).

Notice and Assistance

Upon receipt of a complete or substantially complete application, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide.

A September 2006 letter satisfied the duty to notify provisions.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  This letter also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating.  The Veteran was informed of the need to show the impact of disability on daily life and occupational functioning.  The claim was subsequently readjudicated, most recently in a May 2009 statement of the case.

In any event, the Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice.

The Veteran's service treatment records, VA medical treatment records, and private treatment records have been obtained; she did not identify any outstanding private or VA treatment records pertinent to the appeal.  38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159.  The Veteran has not indicated, and the record does not contain evidence, that she is in receipt of disability benefits from the Social Security Administration.  38 C.F.R. § 3.159 (c)(2).  A VA examination was conducted in January 2008; the Veteran has not argued, and the record does not reflect, that this examination was inadequate for rating purposes.  38 C.F.R. § 3.159(c)(4).

There is no indication in the record that any additional evidence, relevant to the issue decided, is available and not part of the claim file.  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless.


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran asserts that her left shoulder disability is related to service.  She has a current diagnosis of left acromioclavicular degenerative joint disease (arthritis), impingement syndrome of the left shoulder, and a chronic rotator cuff tear.

Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability.  See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir. 2009).

Service connection may be granted for disability resulting from injury incurred during active military service.  38 C.F.R. § 3.303(a).

For a veteran who served 90 days or more of continuous, active service, and a chronic disease, such as arthritis, becomes manifest to a degree of 10 percent within one year from date of separation from service, the disease shall be presumed to have been incurred in service even though there is no evidence of such disease during the period of service.  38 U.S.C.A. § 1112, 1137; 38 C.F.R. §§ 3.307, 3.309.

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 after discharge is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.  38 C.F.R. § 3.303(b).

A January 1983 service treatment record shows that the Veteran was treated for a bruise on the left upper arm due to a car accident.  Myofascial pain was diagnosed.  The Veteran reported shoulder pain in December 1983.  Viral syndrome was diagnosed.  There is no evidence of further complaints, treatment, or diagnoses related to the left shoulder in the Veteran's service treatment records.

A July 1988 separation examination and a September 1995 reserve medical examination show that the left shoulder was normal, and that the Veteran denied any history of left shoulder problems during service. 

The Veteran, as a lay person, is competent to report shoulder pain and symptoms she can personally observe.  38 C.F.R. § 3.159(a)(2).  The Veteran is also competent to diagnose a simple medical condition, such as a dislocated shoulder.

The Veteran, however, is not competent to self-diagnose arthritis, which is only confirmed through x-ray evidence.  See 38 C.F.R. § 4.71a, DC 5003, 5010, Jandreau v. Nicholson, 492 F.3d 1372, 1376-77  (Fed. Cir. 2007).

As the Veteran has not shown that she is qualified through education, training, or experience to offer medical diagnoses, she is not competent to diagnose arthritis in service.

As arthritis was not noted or diagnosed in service or within one year of separation, service connection under 38 C.F.R. §§ 3.303(b) or 3.307 does not apply.

As the Veteran's current shoulder disability, to include left acromioclavicular arthritis, impingement syndrome of the left shoulder, and a chronic rotator cuff tear, is not affirmatively shown to have its onset in service, service connection under 38 C.F.R. § 3.303(a) does not apply.

Service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).

The Veteran contends that her current left shoulder disability is the direct result of a December 1982 automobile accident that occurred in service.

Although she is competent to report symptoms of her shoulder disability, such as pain, the question of whether her current shoulder disability is related to an injury in service requires competent medical evidence.  No factual foundation has been established to show that the Veteran is otherwise qualified through specialized education, training, or experience to offer such evidence and her belief that her current shoulder injury is related to the 1982 auto accident is not competent evidence and is afforded no probative value.

Post service medical records show that the Veteran suffered a serious, work-related shoulder injury in November 2004.  The Veteran reported shoulder pain and severe radicular left arm pain and associated neck pain.  In a January 2005 letter, Dr. Weiss, the neurological surgeon treating the Veteran's injury, stated that "[t]he symptoms began with the onset of that work-related injury several months ago . . . . [h]er past history is noncontributory."

On VA examination in January 2008, the Veteran described left shoulder pain since service.  

The VA examiner diagnosed left shoulder impingement syndrome.  He expressed the opinion that there is no causative connection between the Veteran's current shoulder pain and any rotator cuff tear she may or may not have had in service.

The rationale was that there is no clinical or imaging evidence of a rotator cuff tear in or since service.  A 2001 MRI showed that the rotator cuff was normal; a current X-ray shows a normal glenhumeral joint, which is not consistent with a chronic rotator cuff tear; a current clinical examination shows normal strength in the rotator cuff tendons, with only moderate shoulder pain.

VA treatment records show that the Veteran was initially diagnosed with left acromioclavicular arthritis and a chronic rotator cuff tear in May 2008.

The only competent medical evidence of record pertaining to causation consists of the January 2008 VA examiner's opinion that the Veteran's current shoulder disability is not related to service and Dr. Weiss's opinion that Veteran's a shoulder disability began after a postservice shoulder injury and her medical history did not contribute to the disability. 

These medical opinions constitute competent and persuasive medical evidence with respect to a nexus to service.

The preponderance of the evidence is against the claim for service connection for a left shoulder disability; there is no doubt to be resolved; and service connection is not warranted.


ORDER

Service connection for a left shoulder disability is denied.


REMAND

As the evidence shows that the Veteran's cervical spine disability may be related to service, a VA examination is needed.

As the evidence shows that the severity of the Veteran's left and right knee disabilities have worsened since her January 2008 VA examination, a reexamination is needed.

Accordingly, the case is REMANDED for the following action:

1.  Schedule the Veteran for a VA examination by an appropriate medical professional.  

The examiner must review the entire claim file.

The examiner is to describe in detail the current status of the Veteran's service-connected left and right knee disabilities.  Arthritis/limitation of motion, instability, and subluxation must be specifically addressed, and the impact of pain, weakness, fatigue, lack of endurance, and incoordination with repetitive motion must be described with regard to actual functional capacity.

The examiner is to identify any diagnosis associated with the cervical spine and provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that it is related to service.

The examination report must include a complete rationale for all opinions expressed.  If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).

2.  Then, readjudicate the appeal.  If any of the benefits sought remain denied, issue a Supplemental Statement of the Case and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).





______________________________________________
RONALD W. SCHOLZ
 Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs