Citation Nr: 1337180 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 09-28 721 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a right shoulder condition. 2. Entitlement to service connection for a left shoulder condition. 3. Entitlement to service connection for a back condition. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from September 1969 to September 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, denying the claims currently on appeal. During the pendency of this appeal, service connection was granted for internal hemorrhoids in a September 2011 rating decision. Since this grant constituted a full grant of the benefit sought on appeal, this claim is no longer in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). An electronic paperless file (Virtual VA) is also associated with the claims file. In reaching the below conclusions, the Board has reviewed the evidence contained within Virtual VA. However, it is duplicative of evidence already associated with the Veteran's physical claims file. FINDINGS OF FACT 1. The Veteran does not suffer from a current right shoulder condition that manifested during, or as a result of, active military service. 2. The Veteran does not suffer from a current left shoulder condition that manifested during, or as a result of, active military service. 3. The Veteran does not suffer from a current back condition that manifested during, or as a result of, active military service. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for a left shoulder condition have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1154, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). 2. The criteria for establishing entitlement to service connection for a right shoulder condition have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1154, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). 3. The criteria for establishing entitlement to service connection for a back condition have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1131, 1154, 5103(a), 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. A letter sent to the Veteran in August 2007 addressed all notice elements listed under 3.159(b)(1) and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claims and of his/her and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Duty to Assist Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records. Also, the Veteran received a VA medical examination in December 2010, and VA has obtained a copy of the examination report. Records of private medical treatment have also been associated with the claims file. Significantly, neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of the claim. 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, 16 Vet. App. 183 (2002). Relevant Laws and Regulations Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999) (citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996)). Where a veteran has served for 90 days or more during a period of war, or during peacetime service after January 1, 1947, and a chronic disorder, such as arthritis, becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309 (2012). In order to show a chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support a claim. There must be competent medical evidence unless the evidence relates to a condition as to which lay observation is competent to identify its existence. See 38 C.F.R. § 3.303(b) (2012). A recent decision of the United States Court of Appeals for the Federal Circuit (Federal Circuit Court), however, clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b), which as mentioned is an alternative means of establishing the required nexus or linkage between current disability and service, only applies to conditions identified as chronic under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In the case of any veteran who engaged in combat with the enemy in active service with a military, naval, or air organization of the United States during a period of war, campaign, or expedition, the Secretary shall accept as sufficient proof of service-connection of any disease or injury alleged to have been incurred in or aggravated by such service satisfactory lay or other evidence of service incurrence or aggravation of such injury or disease, if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation in such service, and, to that end, shall resolve every reasonable doubt in favor of the veteran. Service-connection of such injury or disease may be rebutted by clear and convincing evidence to the contrary. The reasons for granting or denying service-connection in each case shall be recorded in full. 38 U.S.C.A. §§ 1154. Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that "[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). Bilateral Shoulder Conditions The Veteran contends that he is entitled to service connection for right and left shoulder conditions. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran does not suffer from a chronic disability of either shoulder that manifested during, or as a result of, active military service. As such, service connection is not warranted. The Veteran's service treatment records reflect that he did experience intermittent right shoulder pain during active duty. According to an April 1970 in-service treatment record, the Veteran had been experiencing pain just medial to the right scapula for the last three weeks. A mild muscle strain was diagnosed at this time. The Veteran was again seen with complaints of sharp pain medial to the right scapula in May 1970. A mild muscular strain was again diagnosed. Finally, the Veteran was noted to have intermittent right scapula pain for the past year in March 1971. A musculoskeletal strain was diagnosed at this time and an X-ray revealed no significant abnormalities. The record does not reflect complaints or treatment associated with the left shoulder during service. Subsequently, in his August 1971 separation examination, an evaluation of the upper extremities was deemed to be normal. No chronic disability of either shoulder was diagnosed and the Veteran denied having a painful or "trick" shoulder in his report of medical history associated with this examination. As such, the evidence of record does not reflect that the Veteran suffered from a chronic disability of the right or left shoulder during active duty. Post-service treatment records reflect that the Veteran has since been diagnosed with disabilities of the right and left shoulders. According to a June 2002 magnetic resonance image (MRI) report, the Veteran had bilateral arm pain radiating to the elbow. It was noted the Veteran had experienced a work injury. The Veteran was diagnosed with mild arthropathy acromioclavicular joint, probably degenerative. The report does not suggest that this was a long-standing disability or that it manifested as a result of military service more than 30 years earlier. An earlier treatment note dated August 2000 notes a history of "occasional left shoulder pain." However, there was no reference to complaints associated with the right shoulder at this time. There is no other medical evidence to suggest that a disability of either shoulder manifested within one year of separation from active duty. Furthermore, there is no competent and credible evidence of record suggesting any relationship between a current shoulder disability and military service. An August 2008 statement from a Dr. S does indicate that "given [the Veteran's] history," "there was a connection between his military stress to his shoulders and his present condition." Dr. S also indicated that he believed the injuries sustained by the Veteran in the military contributed to his current problems. While the Board has considered the opinion of Dr. S, it does not find it to be probative. While the conclusions of a physician are medical conclusions that the Board cannot ignore or disregard, see Willis v. Derwinski, 1 Vet. App. 66 (1991), the Board is free to assess medical evidence and is not compelled to accept a physician's opinion. See Wilson v. Derwinski, 2 Vet. App. 614 (1992). Initially, Dr. S provided no rationale in support of his opinions. The Court has held that the value of a physician's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). Furthermore, the examiner referenced injuries sustained during military service, but failed to address the fact that there is no medical evidence of an in-service injury or that a May 1970 record specifically notes no history of trauma. Dr. S also failed to address that the Veteran himself denied suffering from shoulder pain upon separation. A bare conclusion, even one reached by a medical professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345, 348 (1998). As such, the Board does not find the opinion of Dr. S to be probative. Finally, the Veteran was afforded a VA examination of the shoulders in December 2010. It was noted that the Veteran's shoulder condition was related to wear and tear. There was a history of an arthroscopy in 2003 and surgery to repair the shoulder in 2005. X-rays were within normal limits, and the examiner diagnosed the Veteran with a right shoulder rotator cuff strain, status post-right arthroscopic surgery with residual scar and a left shoulder rotator cuff strain, status post-left shoulder surgery with scar. The examiner opined that these conditions were not due to active military service. The examiner explained that there was no evidence indicative of an in-service injury. There was also no evidence of complaints of shoulder pain in the years following military service and the Veteran himself denied shoulder pain at the time of separation. Therefore, in light of the significant lapse in time between separation and the present, the examiner opined that it was more likely than not that a nonservice-connected condition was the cause of the Veteran's current right and left shoulder conditions. The preponderance of the evidence of record, therefore, demonstrates that service connection for a disability of either shoulder is not warranted. Service treatment records do not reflect a chronic disability involving either shoulder, and the Veteran himself denied shoulder pain at the time of separation. The record contains no further evidence of symptomatology involving the shoulders for more than three decades following separation from active duty. Finally, the record contains no evidence that is both competent and credible relating a current shoulder disability to military service. As such, service connection is not warranted. The Board recognizes that the Veteran believes his current shoulder disabilities manifested as a result of active service. In his original claim of July 2007, the Veteran asserted that he injured his shoulders when sliding down a bank with his heavy gear on during heavy rain. He has since alleged that his shoulder conditions arose as a result of him carrying heavy gear while walking miles and miles every day. While the Veteran is certainly competent to discuss in-service symptomatology, the record does not contain any evidence to suggest that the Veteran has the requisite training and expertise to offer an opinion linking a current medical condition to symptomatology experienced decades earlier. The Veteran himself denied shoulder pain upon separation and he has not provided any evidence of a chronic condition of either shoulder for the 30 years following separation from active duty and the first medical evidence of complaints involving the shoulder. As such, the Veteran's opinion as to the cause of his current shoulder conditions is not probative. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claims of entitlement to service connection for bilateral shoulder conditions must be denied. Back Condition Finally, the Veteran contends that he is entitled to service connection for a back condition. However, as outlined below, the preponderance of the evidence of record demonstrates that the Veteran does not suffer from a chronic disability of the back that manifested during, or as a result of, his active military service. As such, service connection is not warranted. The Veteran's service treatment records do not reflect complaints regarding the spine or any treatment related to the spine. Furthermore, an evaluation of the spine performed as part of his August 1971 separation examination was deemed to be normal. The Veteran also denied a history of recurrent back pain in his report of medical history associated with this examination and reported that his health was good. As such, there is no evidence of an injury or chronic disability of the spine during active military service. Post-service records also fail to reflect that the Veteran was diagnosed with any disability of the spine within one year of his separation from active duty. According to a November 2006 MRI report, the Veteran was suffering from congenital lumbar stenosis, left paramidline disc protrusion at L5-S1 with left S1 nerve displacement, moderate to severe thecal sac narrowing at L3-4 with moderate thecal sac narrowing at L4-5 and right paramidline to right foraminal disc extrusion resulting in right L5 never displacement in the lateral recess as well as moderate to severe right foraminal narrowing with expected right L4 nerve impingement. None of these conditions were noted to be related to military service. The Veteran was afforded a VA examination of the spine in December 2010. The Veteran reported that this condition had existed since 1970 and that it was not due to injury or trauma. The Veteran described constant pain that he first experienced in 1970. The examiner diagnosed the Veteran with degenerative arthritis of the lumbar spine and congenital lumbar stenosis with paramidline L5-S1 disc protrusion. The examiner opined that this condition did not arise as a result of military service. Service records did not reflect a low back condition and the Veteran himself denied back pain during his separation examination. There was also no evidence of post-service follow-up for back pain. Finally, given the length of time between the reported in-service pain and the present, the examiner opined that it was more likely than not that the Veteran's low back condition was due to nonservice-connected factors. The preponderance of the evidence of record demonstrates that service connection for a low back disorder is not warranted. There is no medical evidence of any injury to the back during military service or any medical treatment related to back symptomatology. The Veteran himself also denied a history of back pain in his separation examination of August 1971. The record also does not contain any evidence of a disability being diagnosed until several decades following separation from active duty. According to the December 2010 VA examiner, due to these facts, it was more likely than not that the Veteran's current back disability arose due to nonservice-connected factors. The record contains no other competent and credible evidence linking a current back disability to military service. While there is a positive statement from a private physician (Dr. S) of record, as discussed in the previous section, this opinion is of no probative value due to Dr. S' failure to provide any rationale in support of his opinion and due to his reliance on an in-service injury, despite the lack of medical evidence of such an injury or the Veteran's explicit denial of back pain upon separation in 1971. See Bloom, 12 Vet. App. at 185; Miller, 11 Vet. App at 348. As such, the preponderance of the evidence of record demonstrates that service connection for a back condition is not warranted. Again, the Board recognizes that the Veteran believes he is entitled to service connection. The Veteran has alleged that he injured his back during military service, which the Board does not dispute. He also informed the VA examiner that he had experienced back pain since 1970. However, the Veteran explicitly denied having, or ever having had, recurrent back pain during his separation examination of August 1971. There is then no post-service treatment involving the spine for several decades, and these records make no mention of an approximately 30 year old injury. Therefore, the Board finds the Veteran's assertion of no back pain at the time of separation to be more probative than allegations of pain since 1970 offered in 2007 (the date of receipt of the Veteran's claim) - or approximately 36 years after separation from active duty. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to service connection for a back condition must be denied. ORDER The claim of entitlement to service connection for a right shoulder condition is denied. The claim of entitlement to service connection for a left shoulder condition is denied. The claim of entitlement to service connection for a back condition is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs