Citation Nr: 1336138 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 10-07 061 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for a left shoulder disability (claimed as left shoulder bursitis), including as secondary to service-connected left wrist ganglion cyst. 2. Entitlement to a rating in excess of 10 percent for left wrist ganglion cyst, to include extraschedular considerations. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD A.E.H. Gibson, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1964 to September 1966. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which denied the Veteran's claim. In September 2011, the Board remanded these claims for additional development. Specifically, the Board requested an addendum medical opinion on whether the Veteran's left shoulder disability is aggravated by his service-connected left wrist ganglion cyst. The Board also directed that the Veteran's left wrist be referred to the Director of Compensation and Pension Service for consideration of whether a higher rating was warranted for that disability on an extraschedular basis. The addendum medical opinion has been obtained, and that claim is ready for further appellate review. In regard to the Veteran's left wrist ganglion cyst, it appears that the RO provided notice regarding the governing standard for awarding a higher rating on an extraschedular basis, but the results of the referral were never reported to the Veteran. The issue of whether extraschedular consideration is warranted for his left wrist must be REMANDED to the RO via the Appeals Management Center (AMC), for issuance of a Supplemental Statement of the Case (SSOC). FINDING OF FACT The Veteran's left shoulder disability was not caused or aggravated by service or his service-connected left wrist ganglion cyst. CONCLUSION OF LAW The criteria service connection for a left shoulder disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310, 4.9 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104 (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence. See Gonzales, 218 F.3d at 1380-81. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Id. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. Id. The Veterans Claim Assistance Act (VCAA) The VCAA provides that 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) (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of what is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2013). The 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. 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). All notice under the VCAA should be provided prior to an initial decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II). However, the issuance of a fully compliant VCAA notification followed by readjudication of the claim is sufficient to cure a timing defect. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370 (2006). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006), the United States Court of Appeals for Veterans Claims (Court) observed that a claim of entitlement to service connection consists of five elements: (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. See 38 U.S.C. § 5103(a) (West 2002 & Supp. 2012). Compliance with the first Quartuccio element requires notice of these five elements. See id., at 486. Here, a February 2010 VCAA notice letter informed the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). The VCAA notice letter further indicated the joint obligation between VA and the Veteran to obtain pertinent evidence and information, stating that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records, and other Federal records. See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002). Moreover, the letter provided notice regarding the downstream disability rating and effective date elements of a pending claim for service connection. Therefore, the Board concludes that the duty to notify has been satisfied. The VCAA further provides that VA has a duty to assist the veteran in the development of the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2013). This duty includes assisting him in obtaining service treatment records (STRs) and other pertinent treatment records, as well as providing an examination or obtaining a medical opinion when such is necessary to make a decision on the claim. See id. The duty to assist has been satisfied. The Veteran's STRs and post-service medical records have been obtained and associated with the claims file. Further, the Veteran was provided with a VA compensation examination in March 2010 to determine whether his service-connected left wrist ganglion cyst caused his left shoulder bursitis. An addendum was obtained in November 2012 that addressed whether his left wrist ganglion cyst aggravated his left shoulder bursitis. The Board notes that each opinion included a review of the claims folder and the Veteran's relevant history. These VA examination reports are therefore found to be adequate for adjudicatory purposes. See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007). It appears that all obtainable evidence identified by the Veteran relative to his claim has been obtained and associated with the claims file. Neither he nor his representative has identified any other pertinent evidence, not already of record, which would need to be obtained for a fair disposition of this appeal. The Board concludes that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, supra. Service Connection Service connection may be granted for any current disability that is the result of a disease contracted or an injury sustained while on active duty service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2013). Service connection may also be granted for a disease diagnosed after discharge, where all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2013). 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), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Certain diseases are considered chronic, per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (generally meaning to at least 10-percent disabling) within one year following separation from service. This presumption, however, is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2013). If chronicity of disease or injury in service is not shown, or if it is legitimately questionable, then a showing of continuity of symptomatology following service is required to support the claim. 38 C.F.R. § 3.303(b). Establishing continuity of symptomatology under 38 C.F.R. § 3.303(b) is an alternative method of satisfying the second and third Shedden requirements to show chronicity (permanency) of disease or injury in service to, in turn, link current disability to service. See also Clyburn v. West, 12 Vet. App. 296, 302 (1999). That is, these second and third elements can be satisfied under 38 C.F.R. § 3.303(b) by competent and credible evidence demonstrating: (1) the condition was observed ("noted") during service; (2) symptoms of that condition continued after service; and, (3) the current condition is related to those continuing symptoms. However, continuity of symptomatology only can be used to establish this required linkage between the current condition and service if the condition is one of those explicitly recognized as "chronic" under 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran has been diagnosed with degenerative joint disease, which is also called arthritis and is listed as a chronic condition under § 3.309(a). Service connection may also be granted for a disability which is proximately due to, or the result of another service-connected disability. 38 C.F.R. § 3.310(a) (2013). Additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability is also compensable under 38 C.F.R. § 3.310(a). Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and, (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran asserts that his left shoulder disability is related to service, in that it was caused or aggravated by his service connected left wrist ganglion cyst. For the reasons that follow, the Board does not find service connection warranted. During his separation examination in September 1966, the Veteran did not complain of shoulder pain, and he was given a normal clinical evaluation of his upper extremities. He was given a "1" in each aspect of his PULHES profile. He first complained of left shoulder pain in December 2008. X-rays were within normal limits and the impression was left shoulder rotator cuff tendinopathy. At the March 2010 VA examination, the Veteran was diagnosed with left shoulder bursitis and left should degenerative joint disease. The examiner opined that the bursitis and degenerative joint disease were not related to the left wrist ganglion cyst, as the left shoulder is not affected by wrist joint biomechanics. The November 2012 VA examination addendum, the VA examiner opined that the left wrist condition has not aggravated any left shoulder condition. He said that the wrist and shoulder are two distinct areas that are unrelated in range of motion, anatomy, and biomechanics. Based on the foregoing evidence, the Board finds that service connection is not warranted. The most probative evidence in this matter are the two VA examination reports, which weigh against service connection. The March 2010 VA examiner opined that the Veteran's left wrist did not cause his left shoulder bursitis or degenerative joint disease, as the shoulder is not related to left wrist biomechanics. The November 2012 VA examiner opined that the left shoulder was not aggravated by the left wrist, for the same reason. There is no probative evidence that outweighs the VA examination reports that are not in favor of service connection. To the extent the Veteran is asserting that there is a relationship between his left shoulder disability and his left wrist, the statement is not probative as he has not been shown to have the medical training or expertise to competently opine on the cause of his left shoulder diagnoses. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). As discussed above, the Veteran's degenerative joint disease is a chronic disability listed in 38 C.F.R. § 3.309(a); however, presumptive service connection is not warranted, either. As already explained, the Veteran's left shoulder degenerative joint disease, is a "chronic" disease according to 38 C.F.R. § 3.309(a). Therefore, the Board additionally has considered whether service connection is established by way of the presumptions set forth in 38 U.S.C.A. §§ 1101, 1112, 1113 and 1137 and 38 C.F.R. §§ 3.307(a), 3.309(a) and 3.303(b). Under section 3.307(a), a chronic disability is presumed to be service connected if it manifests to a compensable degree within the first year following service. The Veteran separated from service in 1966, and the competent and credible evidence does not show arthritis until 2010, well more than one year following his separation from service. Under section 3.303(b), if a chronic condition was shown in service and then subsequently manifested after separation from service, it will be presumed to be service connected unless clearly attributable to other ("intercurrent") causes. But the evidence does not show that he was diagnosed with arthritis during his service. Thus, degenerative joint disease of the left shoulder cannot be service connected by way of presumption. Bursitis is not listed among the chronic conditions, and cannot be service-connected by way of presumption, either. Accordingly, service connection for left shoulder bursitis and degenerative joint disease must be denied. The preponderance of the evidence is against this claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2013). See also Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER The claim of entitlement to service connection for left shoulder disability, including as secondary to service connected left wrist ganglion cyst, is denied. REMAND The Board directed the RO to refer the Veteran's left wrist ganglion cyst to the Director of Compensation and Pension services, for consideration of whether a higher rating was warranted on an extraschedular basis. It is not clear whether that ever occurred, as the issue was not addressed on the January 2013 SSOC. Accordingly, this matter must be remanded so that an SSOC can be issued on this aspect of his increased rating claim. See 38 CFR 19.31(c)(2013). See also Shipley v. Shinseki, 21 Vet. App. 458, 461 (2011); Juarez v. Peake, 21 Vet. App. 537, 543 (2008). Accordingly, the case is REMANDED for the following action: The RO/AMC should report the results of the review of the Veteran's left wrist ganglion cyst by Director of Compensation and Pension in an SSOC. If the issue was never referred, it should be. Allow an appropriate time for response before returning the case to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matter 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. 2012). ______________________________________________ KELLI A. KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs