Citation Nr: 1337164	
Decision Date: 11/14/13    Archive Date: 11/26/13

DOCKET NO.  05-13 282	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Huntington, West Virginia



THE ISSUES

1.  Entitlement to service connection for a right shoulder disorder.

2.  Entitlement to service connection for a left shoulder disorder.



REPRESENTATION

Veteran represented by:	J. Michael Cassell, Attorney



ATTORNEY FOR THE BOARD

K. Osegueda, Associate Counsel


INTRODUCTION

The Veteran had active service from July 1966 to June 1970.  His awards and decorations include the Combat Action Ribbon and the Purple Heart Medal.  

This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a May 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia.  

In March 2009, March 2012, and February 2013, the Board remanded the issues for further development.  After completing the requested development, the Appeals Management Center (AMC) denied the claims (as reflected in an August 2013 supplemental statement of the case (SSOC)) and returned the case to the Board for appellate review.

In addition to the paper claims file, there are Virtual VA and Veterans Benefits Management System (VBMS) paperless files associated with the Veteran's claims.  A review of the documents in the paperless claims files reveals documents that are either duplicative of the evidence in the paper claims file or irrelevant to the issues on appeal.


FINDINGS OF FACT

1.  There is clear and unmistakable evidence the Veteran had a fractured right clavicle that preexisted his service.

2.  The Veteran has not been shown by competent medical evidence to currently have a right shoulder disorder that is related to any aggravation during service of his preexisting right clavicle fracture or otherwise etiologically related to his military service. 

3.  The Veteran has not been shown by competent medical evidence to currently have a left shoulder disorder that is etiologically related to his military service.  
CONCLUSIONS OF LAW

1.  A right shoulder disorder was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1101, 1110, 1154, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012).

2.  A left shoulder disorder was not incurred in or aggravated by service.  38 U.S.C.A. §§ 1101, 1110, 1154, 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Upon receipt of a substantially complete application for benefits, VA must notify the claimant of 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; 38 C.F.R. § 3.159(b); 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. 

VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ).  Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004).  However, the VCAA notice requirements may be satisfied notwithstanding errors in the timing or content of the notice if such errors are not prejudicial to the claimant.  Id. at 121.  Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim.  Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). 

VA's General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless.  See VAOGCPREC 7-2004.

The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).  Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements.  Id. at 1320.  However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record.  See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). 

In this case, the requirements with respect to the content of the notice were met.  Specifically, a letter was sent to the Veteran in January 2004 that notified him of the evidence needed to substantiate his claims for service connection.  An August 2012 letter also informed the Veteran of the division of responsibilities in obtaining the evidence to support his claims and explained how disability ratings and effective dates are determined.  See Dingess, 19 Vet. App. at 473.

The Board notes that the case was readjudicated by the AMC in November 2012 and August 2013 SSOCs; therefore, there is no timing error in this case.  Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating the claim and notifying claimant of such readjudication in the statement of the case).

In addition, the duty to assist the Veteran has also been satisfied in this case.  The Veteran's service treatment records, as well as all identified and available post-service medical records, are in the claims file and were reviewed by both the RO and the Board in connection with the claims.  

During a June 2003 VA examination, the Veteran reported that he was receiving Social Security Administration (SSA) disability benefits.  In April 2009, the RO sent an initial request to SSA for any pertinent records.  In an April 2009 response, SSA indicated that it was unable to send the requested medical records because the medical records had been destroyed and no longer existed; therefore, further efforts to obtain them would be futile.  In March 2009, the Board remanded the case to obtain the Veteran's SSA disability file, including any pertinent claim for benefits, the SSA decision, any List of Exhibits associated with the decision, and copies of all of the medical records upon which any decision concerning the Veteran's entitlement to benefits was based.  If a negative response was received from SSA, the RO was directed to associate a formal unavailability memorandum with the claims file.  In June 2009, the RO sent a request to SSA for the Veteran's SSA disability records, pursuant to the March 2009 remand directives.  In a June 2009 response, SSA indicated that it was unable to send the requested medical records because it was unable to locate the medical records and further efforts would be futile.  In June 2009, the RO sent a request to SSA's Office of Disability Operations (ODO) for the Veteran's SSA disability records.  In a June 2009 response, SSA ODO reported that the Veteran's file was destroyed.  In a March 2012 remand, the Board directed the RO to issue a formal unavailability memorandum regarding the SSA disability records.  Thereafter, in August 2012, the RO sent a letter to the Veteran requesting that he send any SSA records that he had in his possession.  The RO issued a formal finding of unavailability memorandum in August 2012.  In the memorandum, the RO noted that the Veteran's SSA medical records were unavailable, and that all efforts to obtain the SSA records were exhausted and further attempts to obtain the records would be futile.  It also noted that the Veteran had not replied to the August 2012 correspondence requesting that he submit any SSA records in his possession.

The Veteran referenced private treatment for his shoulders, including bilateral shoulder replacement surgeries in February 1996, April 2000, and July 2000; however, these private treatment records have not been associated with the record.  The Board notes that the duty to assist is not a one-way street.  See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).  VA is only obligated to obtain records that are adequately identified and for which necessary releases have been submitted.  See 38 C.F.R. § 3.159(c)(1).  The Veteran was provided several opportunities to submit releases so the RO could obtain the outstanding private treatment records; however, he did not complete and return releases for the outstanding records.  Without the required information or forms from the Veteran, VA is unable to make additional attempts to secure these potentially relevant records.  The Board finds that, based upon the RO's attempts to obtain releases for the pertinent private treatment records, the RO has accomplished all necessary steps to attempt to obtain these records.  Additionally, all steps have been communicated with the Veteran, and he has been given the chance to assist in developing his claims.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).  In this case, the Veteran was afforded VA examinations in September 2012 and May 2013.  

In the February 2013 remand, the Board directed to RO to obtain a VA addendum opinion from the September 2012 VA examiner with regard to the claimed shoulder disorders, on the basis of aggravation of a disorder that may have preexisted service.  The Board noted that the September 2012 VA examiner did not answer the etiology questions as posed in the March 2012 remand, and he did not use the appropriate standard as to whether the claimed right and left shoulder disorders "clearly and unmistakably" preexisted service and "clearly and unmistakably" were not aggravated by service beyond its natural progression.  

Thereafter, the Veteran was afforded another VA examination in May 2013.  The Board finds that the medical opinions obtained in May 2013 are adequate, as they are predicated on a full reading of the available service treatment records contained in the Veteran's claims file.  They consider all of the pertinent evidence of record and provide a complete rationale for the opinions stated.  Additionally, the VA examiner was fully responsive to the February 2013 remand directives and provided the requested opinions in his examination report.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met.  38 C.F.R. § 3.159(c)(4). 

VA has further assisted the Veteran and his attorney throughout the course of this appeal by providing them with a statement of the case (SOC) and SSOCs which informed them of the laws and regulations relevant to the Veteran's claims.  

The Veteran has not made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide the particular claims on appeal.  He has been given ample opportunity to present evidence and argument in support of his claims.  

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. 

Laws and Regulations

Service connection may be established for disability resulting from personal injury suffered or disease contracted in 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).  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). 

The term "chronic disease," whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309(a).  Walker v. Shinseki, No. 2011-7184, slip op. at 13 (U.S. Fed. Cir. Feb. 21, 2013).  

The Board notes that 38 C.F.R. § 3.303(b), applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).  With respect to the current appeal, this list includes arthritis.  See 38 C.F.R. § 3.309(a). 

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 compensable degree within one year of separation from service.  38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a).  However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable degree within one year of separation from service.  See 38 C.F.R. § 3.307.

In order to establish entitlement to service connection for a disability, the 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.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 

Where a veteran engaged in combat, satisfactory lay evidence that an injury or disease was incurred in service will be accepted as sufficient proof of service connection where such evidence is consistent with the circumstances, conditions, or hardships of service.  38 U.S.C.A. § 1154(b). 

Section 1154(b) sets forth a three step sequential analysis that must be undertaken when a combat veteran seeks benefits under the method of proof provided by the statute.  First, it must be determined whether the veteran has proffered "satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease."  Second, it must be determined whether the proffered evidence is "consistent with the circumstances, conditions, or hardships of such service."  Finally, if the first two requirements are met, VA shall accept the veteran's evidence as "sufficient proof of service connection," even if no official record exists of such incurrence exists.  In such a case a factual presumption arises that that the alleged injury or disease is service connected.  Collette v. Brown, 82 F.3d 389, 393 (Fed. Cir. 1996); 38 C.F.R. § 3.304.  

The provisions of 38 U.S.C.A. § 1154(b) do not establish a presumption of service connection, but eases the combat veteran's burden of demonstrating the occurrence of some in-service incident to which the current disability may be connected.  See Caluza v. Brown, 7 Vet. App. 498 (1995).  That is, the statute provides a basis for determining whether a particular injury was incurred or aggravated in service, but not a basis to link the injury etiologically to the current condition.  Dalton v. Nicholson, 21 Vet. App. 23, 36-37 (2007); Cohen v. Brown, 10 Vet. App. 128, 138 (1997); Libertine v. Brown, 9 Vet. App. 521, 523-24 (1996).  Competent evidence of a current disability and of a nexus between service and a current disability is still required.  Wade v. West, 11 Vet. App. 302 (1998); Turpen v. Gober, 10 Vet. App. 536 (1997); Libertine v. Brown, 9 Vet. App. 521 (1996).  

In-service incurrence or aggravation by way of the combat presumption may also be rebutted by clear and convincing evidence to the contrary.  38 U.S.C.A. § 1154(b).  That is, if the lay or other evidence of service incurrence or aggravation is satisfactory and consistent with the veteran's combat service, the veteran prevails on the in-service aspect of the claim unless this evidence is rebutted by clear and convincing evidence that the disease or injury was not incurred or aggravated in service or during an applicable presumptive period.  See 38 U.S.C.A. § 1154(b); Caluza v. Brown, 7 Vet. App. 498 (1995); Arms v. West, 12 Vet. App. 188 (1999); Collette v. Brown, 82 F.3d 389 (Fed. Cir. 1996).

Every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of the examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C.A. § 1111.  History provided by the veteran of the preservice existence of conditions recorded at the time of the entrance examination does not, in itself, constitute a notation of a preexisting condition.  38 C.F.R. §§ 3.304(b)(1); Paulson v. Brown, 7 Vet. App. 466, 470 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1995).  To rebut the presumption of sound condition under section 1111 of the statute for disorders not noted on the entrance or enlistment examination, VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.  VAOPGCPREC 3-2003 (July 16, 2003). 

Clear and unmistakable evidence is a more formidable evidentiary burden than the preponderance of the evidence standard.  See Vanerson v. West, 12 Vet. App. 254, 258 (1999) (noting that "clear and convincing" burden of proof, while a higher standard than a preponderance of the evidence, is a lower burden to satisfy than clear and unmistakable evidence).  It is an "onerous" evidentiary standard, requiring that the no-aggravation result be "undebatable."  Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993) (citing Akins v. Derwinski, 1 Vet. App. 228, 232 (1991)) and Vanerson, 12 Vet. App. at 258, 261; id. at 263 (Nebeker, C.J., concurring in part and dissenting in part).  Concerning clear and unmistakable evidence that the disease or injury was not aggravated by service, the second step necessary to rebut the presumption of soundness, a lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition.  Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 U.S.C.A. § 1153. 

A presumption is an assumption of fact resulting from a rule of law which requires such fact to be assumed from another fact or group of facts found or otherwise established in the action.  Black's Law Dictionary 1067 (5th ed. 1979).  Therefore, where the presumption of sound condition at entrance to service cannot be rebutted, the fact for which the presumption stands--that is, that the veteran was in sound condition at entry to service as to the disability for which he seeks service connection--must be assumed as a matter of law.  

To rebut the presumption of sound condition for disorders not noted on the entrance or enlistment examination, VA's General Counsel has clarified that VA must show by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service.  The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches.  This holding replaced the previous standard under 38 C.F.R. § 3.304(b), which had required that if a condition was not noted at entry, but was shown by clear and unmistakable evidence to have existed prior to entry, the burden then shifted to the claimant to show that the condition increased in severity during service.  VAOPGCPREC 3-2003.  The Court and Federal Circuit Court have adopted the General Counsel's position.  Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004).

For veterans who served during a period of war or after December 31, 1946, clear and unmistakable evidence is required to rebut the presumption of aggravation where the preservice disability underwent an increase in severity during service, and clear and unmistakable evidence includes medical facts and principles which may be considered to determine whether the increase is due to the natural progress of the condition.  38 C.F.R. § 3.306(b). 

The government may show a lack of aggravation by establishing by clear and unmistakable evidence that there was no increase in disability during service or that any increase in disability was due to the natural progress of the preexisting condition.  38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012).  See also Wagner, 370 F.3d at 1096 (indicating that, in cases where the presumption of soundness cannot be rebutted, the effect is that claims for service connection based on aggravation are converted into claims for service connection based on service incurrence).  If this burden is met, then the veteran is not entitled to service-connected benefits. 

However, if the government fails to rebut the presumption of soundness under Section 1111 by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service, the veteran's claim is one of service connection on a direct incurrence basis.  Wagner, 370 F.3d at 1096.

Temporary or intermittent flare-ups of symptoms of a preexisting condition, alone, do not constitute sufficient evidence for a non-combat veteran to show increased disability for the purposes of determinations of service connection based on aggravation under section 1153 unless the underlying condition worsened.  Davis v. Principi, 276 F. 3d 1341, 1346-47 (Fed. Cir. 2002); Hunt v. Derwinski, 1 Vet. App. 292, 297 (1991). 

The law provides that an increase in disability must consist of worsening of the enduring disability.  Davis v. Principi, 276 F.3d 1341, 1344 (Fed. Cir. 2002).  Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service.  38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995).  See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (which holds that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat veteran to establish an increase in disability). 

A "lasting worsening of the condition"- that is, a worsening that existed not only at the time of separation but one that still exists currently is required.  See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996).  Evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the veteran's health and medical treatment during and after military service, as evidence of whether a preexisting condition was aggravated by military service.  Maxson v. Gober, 230 F.3d 1330, 1333   (Fed. Cir. 2000).
Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during and subsequent to service.  38 C.F.R. § 3.306(b).  The usual effects of medical and surgical treatment in service, having the effect of ameliorating disease or other conditions incurred before enlistment, will not be considered service connected unless the disease or injury is otherwise aggravated by service.  38 C.F.R. § 3.306(b)(1).

Independent medical evidence is needed to support a finding that the preexisting disorder increased in severity in service beyond its natural progression.  See Paulson v. Brown, 7 Vet. App. 466, 470-471 (1995); Crowe v. Brown, 7 Vet. App. 238, 246 (1994). 

Factual Background

A June 1966 enlistment examination documented a normal clinical evaluation of the upper extremities.  The examining medical officer assigned a numerical designation of 1 under "U" on the Veteran's physical profile.  The physical profile is divided into six categories.  The U stands for upper extremities.  The number 1 indicated that an individual possessed a high level of medical fitness and, consequently, was medically fit at enlistment.  Odiorne v. Principi, 3 Vet. App. 456, 457 (1992).  In an associated report of medical history, the Veteran indicated that he had a history of broken bones.  In the physician's summary, the examining medical officer noted that the Veteran broke his right collar bone in 1963.  The Veteran denied a history of arthritis or rheumatism; bone, joint, or other deformity; and a painful or "trick" shoulder or elbow.  

In an August 1966 service treatment note, the Veteran was treated for a contusion over an old fracture of the right collar bone.  A physical examination revealed a deformed right clavicle.  

A May 1967 service treatment note indicated that the Veteran returned from the field with complaints of pain running from the mid-occipital, down both sides of his neck, and across the left shoulder.  He indicated that he sustained a blow or a concussion after he dove into a fox hole while under attack in the field.  An examination revealed mild spasms of the trapezius muscles.

A June 1970 separation examination showed no complaints pertaining to the upper extremities or shoulders.  The examining medical officer assigned a numerical designation of 1 under "U" on the Veteran's physical profile, indicating that the Veteran possessed a high level of medical fitness for his upper extremities.  

In a February 1994 private treatment note, the Veteran reported that he had bilateral shoulder pain.  He stated that he worked approximately 70 to 80 hours per week and he drove a concrete mixer truck.  

In a January 1996 private treatment note, the Veteran complained of left shoulder pain for approximately one week.  He indicated that he had a history of right shoulder degenerative joint disease.  He stated that he drove a concrete mixer truck and he performed manual labor.  He demonstrated a range of motion from 15 to 90 degrees with discomfort.  The diagnoses were bursitis and degenerative joint disease.

In a January 1996 follow-up private treatment note, the Veteran continued to complain of left shoulder pain on movement.  His range of motion was decreased secondary to pain.  The diagnosis was degenerative joint disease of the left shoulder.  

In an August 1996 private treatment note, the Veteran indicated that he had surgery on his left shoulder in February 1996.

In a September 1997 private treatment note, the Veteran complained of pain between his shoulder blades that radiated to his neck and over his shoulders.  The diagnosis was neck pain secondary to muscle spasms.  

November 1999 private treatment notes showed the Veteran continued to complain of bilateral shoulder pain.  
In a December 1999 private treatment note, the Veteran reported that his pain started in the right side of his neck and ear.  He related that his shoulder pain was approximately 4 out of 10 in severity.  He indicated that he thought his pain began during his service when he was tortured in Vietnam.

In another December 1999 private treatment note, the Veteran reported that he had arthritis in his shoulders and he may have needed his shoulders replaced.  

An August 2000 private treatment note indicated that the Veteran had a chronic shoulder injury.  

In a September 2001 private treatment note, the Veteran reported that his shoulders were "doing great" and they felt better than they had in 20 years.  He indicated that he was receiving nerve blocks in his neck which helped his pain.  The physician noted that range of motion of the shoulders was "pretty good" and x-rays looked "tremendous."  

In a December 2001 VA primary care treatment note, the Veteran complained of bilateral shoulder pain despite improvement in the functional capacity of the joints.  The diagnosis was degenerative osteoarthritis of both shoulders, status-post surgical replacement.  

An October 2002 private treatment note indicated that the Veteran had a history of bilateral shoulder replacements in April 2000 and July 2000.  He continued to complain of pain in his upper back, shoulders, and the left side of his neck.  The diagnoses were acute myofascial spasms and chronic shoulder and arm pain.  

In a May 2003 private treatment note, the Veteran complained of increased bilateral shoulder pain that started spontaneously approximately two weeks ago.  The diagnosis was tendonitis.

In a May 2003 VA treatment note, the Veteran reported that he had both of his shoulders implanted because of degenerative disease.

In a June 2003 private treatment note, the Veteran reported that his shoulders were "doing well."  He stated that he had full function with daily activities and good range of motion with an occasional mild ache.  An examination of the shoulders revealed good range of motion with "perfect stability."  The physician noted that x-rays of the Veteran's shoulders looked "good."  

In a July 2003 VA treatment note, a physician diagnosed the Veteran with chronic pain syndrome associated with shoulder arthrosis.

In a January 2004 VA treatment note, the Veteran continued to complain of bilateral shoulder pain.  

In an October 2007 VA treatment note, the diagnoses included degenerative osteoarthritis and chronic pain syndrome.

In a November 2008 VA treatment note, the Veteran reported a past medical history that included degenerative joint disease and shoulder replacements.

During a September 2012 VA shoulders examination, the Veteran reported a long history of shoulder problems.  The examiner noted that a review of the claims file showed the Veteran's shoulder complaints began "at least since 1996."  The examiner noted that the Veteran had a history of a right fractured clavicle prior to enlistment in 1966, and that there were no notable shoulder injuries during service.  An examination of the shoulders showed reduced range of motion and functional loss and/or functional impairment of the shoulders due to weakened movement, excess fatigability, and pain on movement.  He had localized tenderness or pain on palpation of the joints of both shoulders.  The examiner noted that the Veteran had a right shoulder joint replacement in April 2000 and a left shoulder replacement in July 2000.  He had intermediate degrees of residual weakness, pain, and/or limitation of motion in both shoulders.  The examiner noted that imaging studies of the shoulder were not performed, but his history of bilateral shoulder replacements indicated advanced arthritis in both shoulders.  The diagnosis was degenerative arthritis of both shoulders, status-post shoulder replacements.

The September 2012 VA examiner opined that the Veteran's bilateral shoulder condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  The examiner noted that the Veteran had a preexisting right fractured clavicle, but no shoulder problems were identified in the enlistment examination.  The examiner also noted that the Veteran complained of a contusion injury during service, but there was no apparent sequelae noted in the August 1966 service treatment note, and there were no follow-up visits related to the incident.  The examiner noted that the deformity mentioned in the August 1966 service treatment note was "most likely the typical deform[it]y from clavicular fracture which usually persist."  The examiner noted that the May 1967 service treatment note that documented a complaint of pain running from the mid-occipital down both sides of the neck and across the left shoulder was "more likely related to a neck condition than a shoulder condition."  The examiner noted that the Veteran did not mention any shoulder complaints in previous claims for service connection in 1970 and 1983, and that the earliest record of left shoulder problems was documented in a 1996 private treatment note, which indicated the Veteran had a history of degenerative joint disease in the right shoulder.  The examiner determined that there was not sufficient evidence within the claims file to show that the Veteran's shoulder problems were incurred in, or aggravated by, service.  The examiner stated, "The evidence available is silent on chronic shoulder problems from at least 1970 to the first note identifying shoulder problems in 1996 (26 years later)."  The examiner opined that the Veteran's long years of work as a ready mix or concrete truck driver with a construction company and as a laborer "more than likely contributed to chronic [degenerative joint disease] of his shoulders."

During a May 2013 VA shoulders examination, the Veteran reported that he had a history of a fractured right clavicle prior to enlistment.  He related that he had no problems with his shoulders, including pain or dislocations, when he enlisted.  He stated that he had an injury to his right shoulder during service from carrying heavy back packs that weighed approximately 100 pounds at times.  He indicated that he had shoulder problems since that time, including limited motion, fatigue, and weakness.  Range of motion testing showed reduced range of motion in both shoulders with functional loss and/or functional impairment of the shoulders and arms.  Excess fatigability and pain on movement contributed to the functional loss and/or functional impairment after repetitive use.  He had localized tenderness or pain on palpation of the right shoulder joint and guarding of both shoulders.  The examiner noted that the Veteran had a right shoulder joint replacement in April 2000 and a left shoulder replacement in July 2000.  He had intermediate degrees of residual weakness, pain, and/or limitation of motion in both shoulders.  Imaging studies of the shoulders showed degenerative or traumatic arthritis of both shoulders.  The diagnosis was degenerative arthritis of both shoulders, status-post arthroplasty.  

The May 2013 VA examiner opined that the claimed bilateral shoulder condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness.  The examiner opined that it was undebatable, obvious, absolutely certain, or clear and unmistakable that the Veteran did not have a right shoulder disability prior to entering service in July 1966.  The examiner noted that the Veteran had a preexisting right clavicle fracture, but he did not have any shoulder complaints at enlistment.  The examiner also opined that it was undebatable, obvious, absolutely certain, or clear and unmistakable that the Veteran did not have a left shoulder disability prior to entering service in July 1966.  The examiner noted that there was insufficient evidence of bilateral shoulder injuries during service, and insufficient evidence of a connection between any shoulder problems in active service to his current shoulder complaints.  The examiner noted that the first complaint of shoulder problems was not until 1996.  The examiner opined that the Veteran's post-service work as a ready mix or concrete truck driver with a construction company and as a laborer more than likely contributed to his chronic, bilateral shoulder degenerative joint disease.

Analysis

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to service connection for the claimed right and left shoulder disorders.

Initially, the Board notes that the evidence shows that the Veteran had a preexisting right clavicle fracture that existed prior to entering service.  However, the Board finds that the preexisting fractured right clavicle was neither aggravated by service, nor was it related to his current right shoulder disorder.

In an August 1966 service treatment note, the Veteran was treated for a contusion over an old fracture of the right collar bone, and a physical examination revealed a deformed right clavicle.  There were no subsequent complaints related to the right clavicle.  

In his September 2012 VA examination report, the examiner noted that there was no apparent sequelae noted in the August 1966 service treatment note, and there were no follow-up visits related to the incident.  The examiner noted that he deformity mentioned in the note was "most likely the typical deform[it]y from clavicular fracture which usually persist."  Further, in his May 2013 VA examination report, he opined that it was undebatable, obvious, absolutely certain, or clear and unmistakable that the Veteran did not have a right shoulder prior to entering service in July 1966.  He noted that the Veteran had a preexisting right clavicle fracture, but he did not have any shoulder complaints at enlistment.  Indeed, during the May 2013 VA shoulders examination, the Veteran reported that he had no problems with his shoulders, including pain or dislocations, when he enlisted.  

Based on the foregoing, it is clear that the Veteran did have a complaint and treatment in service regarding his right clavicle.  However, such symptomatology alone is not enough.  Instead, the evidence must show that there was an increase in his right clavicle disorder during service that was beyond the natural progress of the disorder, and, importantly, the evidence must show that the preexisting right clavicle fracture was related to his right shoulder pain.

Additionally, the Veteran has not submitted any other medical evidence addressing whether his preexisting right clavicle fracture permanently increased in severity beyond the natural progression of the disorder, or whether it was related to his current right shoulder disorder.

Based on the foregoing, the Board concludes that the Veteran's right clavicle fracture was not aggravated by service.  Although there is evidence showing treatment in service, the competent and probative evidence does not indicate that such symptomatology represented a permanent worsening beyond the natural progression of the disorder, or that it was related to his current right shoulder disorder.  

The Board has also considered the Veteran's claims of service connection for right and left shoulder disorders on a direct basis. 

By way of background, the Veteran's DD-214 shows that his military occupational specialty (MOS) was cannoneer.  Additionally, the DD-214 and a DD-215 show that he was awarded a Combat Action Ribbon and a Purple Heart Medal.  Thus, his combat service is conceded and his claimed shoulder injuries would be consistent with the circumstances, conditions, or hardships of his service under the tenets of 38 U.S.C.A. § 1154(b) (West 2002). 

As discussed above, for injuries alleged to have occurred in combat, 38 U.S.C.A. § 1154(b) provides a relaxed evidentiary standard of proof to determine service connection.  In considering claims of veterans who engaged in combat during campaigns or expeditions, satisfactory lay or other evidence of incurrence or aggravation in such combat of an injury or disease, if consistent with the circumstances, conditions or hardships of such service, will be accepted as sufficient proof of service connection, even when there is no record of incurrence or aggravation.  However, this provision does not create a statutory presumption that a combat veteran's alleged disease or injury is service connected.  Collette v. Brown, 82 F.3d 389, 392 (Fed. Cir. 1996). 

Thus, insofar as the Veteran may be claiming that any condition is a result of combat, the Board notes that this provision does not alter the fundamental requirements that he must submit probative medical evidence of a causal relationship between his current conditions and service.  Id.  See also Arms v. West, 12 Vet. App. 188, 194-95 (1999) (clarifying that a combat injury, alone, does not obviate the need for the Veteran to still have competent and credible evidence linking his currently claimed disability to that combat injury).  That is, despite his combat status, the Veteran must still provide satisfactory evidence of a relationship between his service and the claimed disabilities.

In this case, the Veteran has not claimed that his current bilateral shoulder disorders were a result of an injury in combat.  In fact, during the May 2013 VA shoulders examination, the Veteran reported that he injured his right shoulder carrying heavy back packs during service.  He did not mention any left shoulder injuries during service.  

The Board notes that, in a December 1999 private treatment note, the Veteran reported that his chronic pain began during service when he was tortured in Vietnam; however, in the treatment note, the Veteran described pain that started in the right side of his neck and ear.  He also reported that he had shoulder pain, but it was unclear whether he attributed his shoulder pain to an incident of torture in Vietnam.  However, as noted above, during the May 2013 VA shoulders examination, he attributed his right shoulder pain to a right shoulder injury from carrying heavy back packs in service.  There were no other references to chronic shoulder pain related to any incidents of torture during service.  

A review of the Veteran's service treatment notes showed that, in an August 1966 service treatment note, the Veteran complained of a contusion to his right clavicle region.  There were no subsequent complaints related to the incident.  In May 1967, the Veteran complained of pain running from the mid-occupital region, down both sides of his neck, and across his left shoulder after returning from the field.  He indicated that he sustained a blow or a concussion after he dove into a fox hole while under attack in the field.  An examination revealed mild spasms of the trapezius muscles.  There were no subsequent complaints pertaining to the shoulders, and, in a June 1970 separation examination, the examining medical officer assigned a numerical designation of 1 under "U" on the Veteran's physical profile, indicating that the Veteran possessed a high level of medical fitness for his upper extremities.  

In his September 2012 VA examination report, the examiner reported that his review of the Veteran's service treatment notes showed no notable shoulder injuries during service.  He noted that the Veteran complained of a contusion to his right clavicle region in August 1966, but there was no apparent sequelae noted, and there was no follow-up treatment related to the incident.  Additionally, the examiner noted that the May 1967 service treatment note that documented a complaint of pain running from the mid-occipital region, down both sides of the neck, and across the left shoulder was "more likely related to a neck condition than a shoulder condition."

A review of the evidence shows that the Veteran did not seek treatment immediately following his separation from service for his claimed right and left shoulder disorders.  The earliest post-service medical evidence is dated in February 1994, when he reported that he had bilateral shoulder pain during private treatment, almost 24 years after his separation from service.  The Board finds this gap in time significant, and it weighs against the existence of a link between his current bilateral shoulder disorder and his time in service.  Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (holding, in an aggravation context, that the Board may consider a prolonged period without medical complaint when deciding a claim). 

Moreover, in his September 2012 and May 2013 opinions, the VA examiner opined that the claimed right and left shoulder disorders were less likely than not incurred in or caused by the Veteran's service.  He noted that there was insufficient evidence of any shoulder injuries during service, and there was insufficient evidence of a connection between any shoulder problems during service and his current bilateral shoulder complaints.  Rather, he opined that the Veteran's post-service work as a ready mix or concrete truck driver and as a laborer more likely contributed to his chronic, bilateral shoulder degenerative joint disease.

The Board finds that the VA examiner's opinions pertaining to the Veteran's etiology of the bilateral shoulder disorder are entitled to great probative weight.  The examiner reviewed the Veteran's claims file, as well as his own reported medical history, and performed physical examinations of the Veteran.   

The Board does acknowledge the Veteran's contentions that his right and left shoulder disorders were incurred during service, and that he had continuous shoulder pain since service.  While lay persons may provide competent testimony as to visible symptoms and manifestations of a disorder, they are generally not competent to offer evidence which requires medical knowledge, such as opinions regarding medical causation or a diagnosis.  Jones v. Brown, 7 Vet. App. 134, 137 (1994); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007); Buchanan v. Nicolson, 451 F.3d 1331 (Fed. Cir. 2006); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992).  In this case, the Veteran is competent to attest to his experiences and symptoms in service and thereafter.  However, he is not competent to render a medical opinion indicating that his current bilateral shoulder disorder was caused by injuries in service, as he does not have any medical training or expertise.  

Therefore, the preponderance of the evidence is against the claim for entitlement to service connection for right and left shoulder disorders.  Accordingly, the benefit-of-the-doubt doctrine is not for application, and the claims must be denied.


ORDER

Service connection for a right shoulder disorder is denied.

Service connection for a left shoulder disorder is denied.




____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs