Citation Nr: 1336752 Decision Date: 11/12/13 Archive Date: 11/22/13 DOCKET NO. 11-30 493 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUE Entitlement to service connection for a left shoulder disorder, to include arthritis of the left shoulder. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Postek, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1955 to February 1959. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In April 2013, the Veteran testified at a hearing before the undersigned Veterans Law Judge at the RO. A transcript is of record. In a May 2013 decision, the Board dismissed the portion of the appeal as to the claim of service connection for arthritis of the lumbar spine as moot and remanded the remaining issue above for further development. The Board again remanded the case for further development in August 2013. That development was completed, and the case has since been returned to the Board for appellate review. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record (electronic claims file). 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 A left shoulder disorder, to include degenerative joint disease (arthritis), did not manifest in service or within one year thereafter and is not related to service. CONCLUSION OF LAW A left shoulder disorder was not incurred in service, nor may arthritis be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, the RO provided the Veteran with a notification letter in March 2010, prior to the initial decision on the claim in May 2010. Therefore, the timing requirement of the notice as set forth in Pelegrini has been met and to decide the appeal would not be prejudicial to the claimant. Moreover, the requirements with respect to the content of the notice were met in this case. In the March 2010 letter, the RO notified the Veteran of the evidence necessary to substantiate the claim for service connection and of the division of responsibilities in obtaining such evidence. The RO also requested clarification of the location of the Veteran's claimed arthritis. The letter further explained how disability ratings and effective dates are determined. In March 2011, the RO sent another letter to the Veteran to again attempt to clarify the location of his claimed arthritis. In addition, the duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment and personnel records as well as all identified and available post-service medical records are in the electronic claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim. The Veteran has not identified any available, outstanding records that are relevant to the claim decided herein. Moreover, the record includes written statements provided by the Veteran, his wife, and his representative, as well as a transcript of the Board hearing. The Veteran was afforded a VA examination in August 2011 in connection with his current claim; the VA examiner was unable to provide an opinion at that time because she did not have access to the claims file. Thereafter, VA opinions were obtained in October 2011 and July 2013. 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 Board finds that the VA examination and July 2013 VA opinion, when taken together, are adequate to decide the case because, as discussed below, the opinion is predicated on a review of the claims file and all pertinent evidence of record, including the examination, during which a history was solicited from the Veteran. The examiner provided a complete rationale for the opinion stated, relying on a citing to the records reviewed. The Board notes that the Veteran's representative previously challenged the adequacy of the October 2011 VA medical opinion. In particular, he asserted that the examiner was not a specialist and did not provide an adequate rationale. In regard to the assertion that the examiner was not a specialist, the Board again notes that this opinion was rendered by a physician, and that ordinarily, there is no requirement that VA medical opinions be rendered by specialists. See Cox v. Nicholson, 20 Vet. App. 563 (2007); 38 C.F.R. § 3.159(a)(1) ("Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions."). Nevertheless, VA obtained the July 2013 VA medical opinion discussed above. Thus, there is adequate medical evidence of record to make a determination in this case. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion for the issue on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran also testified at a hearing before the undersigned Veterans Law Judge in April 2013 on the issues of service connection for arthritis of the lumbar spine and a left shoulder disorder. The Veterans Law Judge clarified the issues on appeal, sought to identify pertinent evidence not currently associated with the claims folder, and elicited further information when appropriate. The hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony and questioning by his representative, demonstrated his actual knowledge of the elements necessary to substantiate the claims. As such, the Board finds that VA complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). There has been no allegation otherwise. VA has further assisted the Veteran throughout the course of this appeal by providing him and his representative with a statement of the case and supplemental statements of the case, which informed them of the laws and regulations relevant to the claim. The Board concludes that the Veteran was provided the opportunity to meaningfully participate in the adjudication of his claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007). For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Law and Analysis As an initial matter, the Board notes that record does not reflect, and the Veteran does not contend that he engaged in combat with the enemy. Therefore, the provisions of 38 U.S.C.A. § 1154(b) are not applicable in this case. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2012). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 arthritis is considered to be a chronic disease for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including arthritis, are presumed to have been incurred in service if they manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that service connection is not warranted for a left shoulder disorder. In this case, the Veteran contends that his current left shoulder disorder is due to his in-service motor vehicle accident. Specifically, he contends that he separated his left shoulder in the accident and has experienced continuing problems since that time. See, e.g., February 2010 claim; Bd. Hrg. Tr. at 3-4, 9. As a clarifying point, the Board notes that there was an indication in some of the Veteran's submissions that he was also claiming the left shoulder disorder as secondary to the service-connected lumbar spine disability (see, e.g., February 2011 notice of disagreement); however, this issue was finally clarified during the Board hearing, and the Board is accordingly reviewing the issue on a direct basis theory of entitlement. See also August 2011 Veteran's written statement (clarifying that left shoulder and back were both injured in accident). The Veteran's service treatment records show that he was involved in a motor vehicle accident in May 1957 as the operator of a vehicle hit from behind. The Veteran was seen by a medical officer that same day for emergency care and given a preliminary diagnosis of a fracture of the right clavicle, clavicular manubrium separation, and possible compression fracture of L-1 and L2 [vertebrae]. See May 1957 line of duty determination memorandum. A treatment record from the Naval Hospital in Corona in July 1957 shows that the Veteran was admitted on the day following the accident with the chief complaint of pain in his right shoulder and back after having been thrown from the car during the accident. On admission examination, there was acute pain in the back and right shoulder. Thereafter, the Veteran was treated with bed rest and a splint for the right clavicle and the vertebrae compression. A notation in June 1957 showed that the Veteran was asymptomatic and was to return to duty shortly. This record and the service personnel records show he was discharged to duty on July 2, 1957. In August 1957, the Veteran complained of pain in the left shoulder and reported that he dislocated the shoulder four months prior. An examination and x-rays were negative. A notation for supraspinatus exercises was made. Parenthetically, as a point of clarification, the Board notes that the Veteran later testified during the Board hearing that he never made such a report of a dislocated shoulder, which appears to correspond to this entry. During the January 1959 separation examination, all of the Veteran's relevant body systems were indicated to be "normal," to include the upper extremities and other musculoskeletal (with the exception of the noted history of compression fracture of the lumbar vertebrae, asymptomatic). In March 1970, the Veteran filed his original claim for compensation, claiming entitlement to service connection for a back condition. During the August 1970 VA examination, the Veteran complained of back and leg pain. It was noted that the Veteran sustained "torn ligaments" of his left shoulder due to the accident and that he was hospitalized for four months. On examination, there was no pain to palpation of either shoulder or clavicle, and range of motion of joints was within normal limits. An x-ray report of both shoulders taken at that time shows no evidence of soft tissue abnormalities. The underlying bony structures did not demonstrate any evidence of recent or old trauma or other bony abnormalities. A diagnosis for the left shoulder was not provided. In April 1998, the Veteran filed a claim for increased evaluations for his service-connected lumbar spine and right clavicle disabilities. In the June 1998 VA examination, he reported that he separated his left shoulder during the in-service car accident, and at times, had some weakness and pain in the shoulder, particularly with movement or using the shoulder to lift. He reported that he was previously in pest control sales, which required him to crawl, climb, and get under houses. The diagnoses included a history of a separated left shoulder and degenerative injury to the left shoulder with functional loss noted in both shoulders. In an April 2010 written statement, the Veteran's wife reported that she met the Veteran in 1984 and did not learn about his in-service accident until two or three years later. She indicated that she observed "most change" after the couple relocated to Oklahoma and the Veteran was employed as pest control inspector, which required him to crawl under houses. She noted that, on many occasions, he would return from work and report that his back or shoulder really hurt. She also indicated that he finally saw a doctor and was prescribed medication after taking over-the-counter pain relievers. In an April 2010 written statement, the Veteran reported the circumstances of his in-service accident, noting that the inside of the driver's car door was "completely smashed in by [his] shoulder" as he was thrown from the vehicle; he indicated that his injuries included a separated left shoulder and that he was treated at the Naval Hospital for about six months. VA treatment records show that the Veteran received treatment for complaints of left shoulder pain and arthritis. A July 2010 VA treatment record shows that the Veteran reported current left shoulder pain on movement, as well as his injury in service. The impression was shoulder pain that was likely as not related to an injury in service. A December 2010 VA treatment record shows that the Veteran was seen as a transfer patient from another VA facility. He reported having problems with chronic issues, although he was never previously fully evaluated. He reported that, in addition to his documented in-service accident injuries, he also hurt his left shoulder, but that this was not really addressed back then due to the problems with his right side. He reported doing pretty well, but noticed the left shoulder getting worse over the last few years, especially the last 6 to12 months. The physician noted "no really new ([at]least remembered) injury" or specific overusage issues. Following examination, the impression was arthralgia, especially of the left shoulder: ? OA changes vs. rotator cuff tear. A December 2010 x-ray report shows a clinical history of progressive left shoulder pain and decreased range of motion. A notation was made that the Veteran had a distant military injury where the right shoulder was affected. The impression was degenerative joint disease of the shoulder and AC joints. No soft tissue calcification or area of bony destruction was seen. In August 2011, the Veteran submitted his copy of the December 2010 x-ray report, with a notation from the doctor that "[t]here is a lot of arthritis as expected." The Veteran was afforded a VA examination in August 2011 during which he reported the history of the in-service car accident and indicated that he was told at discharge that he would have to live with pain in the shoulder. He reported that he had been having pain in the shoulder since that time and was treated by doctors in the past, but stated that he did not have any documentation of this treatment. He denied trauma or injury to the left shoulder after service and reported that the condition had been getting worse in the last three or four years. The diagnosis was mild degenerative joint disease of the left shoulder; x-rays of the shoulder were taken at that time. The results of the December 2010 x-ray were also included in the examination report. The examiner indicated that she could not provide a medical opinion at that time in the absence of the claims folder. In October 2011, another VA physician provided a medical opinion based on the VA examination and review of the claims folder. The physician essentially opined that the Veteran's left shoulder degenerative joint disease was less likely than not due to service, to include the in-service injury, among other things. In so finding, the physician indicated that it was at least as likely as not that the left shoulder arthritis was a result of post-service circumstances, to include the normal process of aging and the pest control work, and it was also noted that the medical database Up To Date On Line lists glenoid bone loss, not arthritis, as a complication of shoulder dislocation. However, the Board determined that the entirety of the rationale was not clear or well-articulated (as discussed in detail in the May 2013 remand), and the matter was ultimately returned for another medical opinion, as discussed below. During the April 2013 Board hearing, the Veteran testified that he never made a statement that he had dislocated the left shoulder four months prior to the accident. He also testified that he had continuous left shoulder problems since the time of the accident. See Bd. Hrg. Tr. at 5, 9. In July 2013, a different VA physician provided a medical opinion based on the VA examination and review of the claims file. The physician determined that it was less likely than not that the Veteran's left shoulder arthritis was related to service. In so finding, the examiner noted that the Veteran certainly had an auto accident with injuries; however, the left shoulder did not appear to have been affected. She indicated that "clavicular man[u]brium separation" was not the equivalent of shoulder separation or dislocation; this referred to the right clavicle having some "loosening" from its usual moorings to the breast bone, not in relation to a shoulder joint issue. She also noted that the Veteran showed the most progression of the arthritis of the left shoulder beginning in June 1998 with worsening range of motion and then increased arthritic changes in the x-rays between December 2010 and August 2011. Based on these considerations and review of the medical record and medical literature, the physician determined that it was less likely than not that the Veteran's left shoulder arthritis was due to service and was more likely than not due to wear and tear over fifty years, including work in a physically demanding occupation. In regard to the Veteran's claim of arthritis beginning in service, to the extent he made such a claim, the Board finds that such a diagnosis was not shown. To determine that a chronic disease was "shown in service," the disease identity must be established and the diagnosis not subject to legitimate question. 38 C.F.R. § 3.303(b); Walker, supra. There is nothing in the service treatment records suggestive of arthritis, and the Veteran's upper extremities and musculoskeletal system in regard to the left shoulder were normal upon separation. Therefore, chronicity is not established in service. There is also no medical evidence showing that the Veteran had arthritis within one year of his military service. The Board acknowledges the Veteran's contention that his left shoulder problems began as a result of the in-service accident and have developed continuously thereafter. The Veteran is certainly competent to report as to the observable symptoms he experiences, such as pain, and their history. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this case, however, the Board finds that the Veteran's allegations of continuity of symptoms following service are inconsistent with the contemporaneous record. As previously noted, the post-accident hospital report, to include his own reports the day following the accident, only shows complaints and treatment for his back and right clavicle, to include on examination. There was only one notation for complaints of left shoulder pain in an August 1957 service treatment record, which was several months after the car accident and also after his hospital discharge, and examination and x-rays yielded negative results. The Veteran also testified during the hearing that he did not report a history of separating the shoulder four months prior to the accident; however, this conflicts with the notation in the August 1957 service treatment record showing such a report. Again, the left shoulder was found to be normal on separation examination. As such, there is actually affirmative evidence showing that the Veteran did not have a left shoulder disorder at the time of his separation from service. In addition, the Veteran filed his original VA compensation claim for a back condition in March 1970, over ten years after separation from service, with an additional claim in April 1998; however, his February 2010 claim was the first instance in which he requested service connection for a left shoulder disorder. During the August 1970 VA examination, it was noted that the Veteran reported "torn ligaments" of his left shoulder due to the accident and that he was hospitalized for four months. These reports are not consistent with the in-service hospital records, to the extent the Veteran reported this information to the examiner. Moreover, there was no pain or limitation of range of motion of the left shoulder on examination, and x-rays provided no evidence of recent or old trauma or soft tissue abnormalities. No findings of a left shoulder disorder were provided at that time. Rather, the first notation of degenerative changes in the shoulder is in the June 1998 VA examination. Finally, while the Board acknowledges the statements of the Veteran's wife in an effort to support his claim, she did not meet him until 1984. As such, her statements only support her observation of the Veteran's continuing symptoms since that time (approximately 25 years after service). She also stated that she noticed "most change" in the Veteran with his duties as a pest control inspector, as discussed above. Given these inconsistencies, when taken together, the Board finds that the Veteran's statements are not credible evidence to establish in-service onset or continuity of symptomatology of left shoulder arthritis since separation from service. In addition to the lack of evidence showing that a left shoulder disorder manifested during active service or within close proximity thereto, the weight of the evidence of record does not link any current left shoulder disorder to the Veteran's military service. There are multiple opinions on the question of whether the Veteran's current left shoulder disorder is related to service. Each of the opinions is based on the report of the in-service motor vehicle accident. In evaluating the individual opinions, the July 2010 VA physician indicated that left shoulder pain was as likely as not related to the reported in-service injury. To the extent this finding of pain was an indication of the arthritis found on x-ray examination shortly thereafter in December 2010, the Board notes that this opinion, while supportive of a claimed link, has little probative value because it is without rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). It is also unclear if the physician considered the complete medical history of the Veteran in providing this opinion. In regard to the December 2010 x-ray report and note added to the Veteran's copy of the report (submitted in August 2011), the Board finds that this notation is neither for nor against the claim. While indicating that the Veteran presently had significant arthritis, the physician does not provide an opinion clearly linking the arthritis to the in-service injury. In fact, the clinical history on the report shows that the Veteran had a distant in-service injury where the right shoulder was affected (emphasis added). As such, the Board finds that this opinion is neutral evidence in regard to the claimed link. As discussed above, the October 2011 VA examiner, while reviewing the claims file and providing an opinion against the claim, did not provide a rationale that was clear or well-articulated. As such, the Board affords also limited probative value to this opinion. Finally, the July 2013 VA examiner determined that it was less likely than not that the Veteran's left shoulder arthritis was due to service and that it was more likely due to wear and tear over fifty years, including work in a physically demanding occupation. This VA physician provided detailed reasons for the opinion based on the examination findings with the Veteran's reports and a review of the claims file, which reflected an accurate characterization of the evidence of record. Therefore, the Board finds that this opinion is entitled to substantial probative weight. See Nieves-Rodriguez, supra. To the extent that the Veteran has opined that his current left shoulder disorder is related to his service, the Board notes that lay witnesses are competent to opine as to some matters of diagnosis and etiology. The Board must determine on a case by case basis whether a Veteran's particular disorder is the type for which lay evidence is competent. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Kahana v. Shinseki, 24 Vet. App. 428, 433, n. 4 (2011). In this case, even assuming that the Veteran is competent to opine on this medical matter, the Board finds that the specific, reasoned opinion of the July 2013 VA examiner is of greater probative weight than the Veteran's more general lay assertions in this regard. Based on the foregoing, the Board finds that the weight of the evidence is against the Veteran's claim. As such, the benefit-of-the-doubt rule does not apply, and the claim is denied. Gilbert, 1 Vet. App. 49, 53. ORDER Entitlement to service connection for a left shoulder disorder, to include arthritis of the left shoulder, is denied. ____________________________________________ JESSICA J. WILLS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs