Citation Nr: 1337884 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 09-16 302 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Entitlement to service connection for a left shoulder disorder. 2. Entitlement to service connection for scars on the face and nose. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD R. Kessel, Counsel INTRODUCTION The Veteran served on active duty from June 1998 to October 1998 and from May 2000 to July 2004. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office in Des Moines, Iowa. FINDINGS OF FACT 1. The Veteran's left shoulder disorder is not related to his active military service. 2. The Veteran's scar on the bridge of the nose cannot be reasonably disassociated with his active military service. 3. The Veteran's pre-existing scar to the left of the bridge of the nose did not increase in disability during service. CONCLUSIONS OF LAW 1. A left shoulder disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). 2. A scar on the bridge of the nose was incurred in active military service. 38 U.S.C.A. §§ 1110, 1111, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). 3. A pre-existing scar to the left of the bridge of the nose was not aggravated by active military service. 38 U.S.C.A. §§ 1110, 1111, 1153, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.306 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist With respect to the claims on appeal, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). The RO's September 2005 and March 2006 letters to the Veteran satisfied the duty to notify provisions relating to the Veteran's claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). He was notified of the information and evidence necessary to substantiate a service connection claim and of the general criteria for assigning disability ratings and effective dates. The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of these claims, including the opportunity to present pertinent evidence. The duty to assist the Veteran has been satisfied for these claims. The RO has obtained the Veteran's service treatment and personnel records and his identified VA treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Pursuant to the Board's February 2011 remand, the RO sent the Veteran a letter later than month asking him to identify medical providers who have treated him for his claimed disabilities. He did not respond to the letter. Pursuant to the Board's April 2013 remand, the RO obtained more recent VA treatment records. The Veteran has also been afforded VA examinations that are adequate to decide the claims. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, pursuant to the Board's April 2013 remand, the June 2013 examiner reviewed the claims file, and took into account the Veteran's statements and treatment records, which allowed for fully-informed medical opinions regarding these two claimed disabilities. Id. In July 2013, the Veteran's representative implied that the June 2013 examination reports are inadequate because the examiner indicated that there was no access to the Veteran's examinations from 2009 to the present. A review of the reports reflects that the examiner indicated that there were no "outside medical records" from 2009 to present. This is true as there are no private medical records dated since 2009 and there is also no indication that any such records exist. The Board remanded the case in April 2013, in part, to obtain more recent VA treatment records, which were obtained in May 2013 by the RO. The examiner noted that the claims file was reviewed and the detailed medical opinions reflect that the examiner was knowledgeable concerning the Veteran's history. In any case, the VA records dated since 2009 that were obtained are not relevant as they pertain to other disabilities or are duplicative of records already in the claims file, such as copies of the May 2011 VA examination reports. Thus, the Board does not find that the June 2013 VA examination reports are inadequate based on the lack of consideration of relevant records. Consequently, remand for another examination or opinion is not necessary and the Board's remand instructions were substantially complied with by the RO. See, e.g., D'Aries v. Peake, 22 Vet. App. 97, 104-06 (2008) (holding that not strict, but substantial compliance with the terms of a Board's engagement letter is required), citing Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (discussing substantial compliance as applied to remand instructions). As such, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2002). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of these claims, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination) (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). II. Analysis Service connection may be granted for disability due to a disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Moreover, service connection may be granted for any disease diagnosed after separation, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). A pre-existing disease or injury will be considered to have been aggravated by military service where there is an increase in disability during such service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a). Clear and unmistakable evidence is required to rebut the presumption of aggravation where the pre-service disability underwent an increase in severity during service. 38 C.F.R. § 3.306(b). A. Left Shoulder The Veteran asserts that he has a left shoulder disorder as a result of his active military service. Specifically, he states that he injured his left shoulder in April 2003 when he was involved in a motor vehicle accident while traveling in a truck in Iraq. The Veteran maintains that any currently diagnosed left shoulder disorder is related to service. The Veteran's service records do not document the motor vehicle accident. However, a lay witness is competent to testify to which the witness has actually observed and is within the realm of his personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). In the April 2013 decision, the Board found that the evidence tends to show that the motor vehicle accident did occur given the Veteran's documented complaints of low back pain following the time period of the claimed in-service injury. Although the service treatment records do not show complaints of or treatment for left shoulder problems, the Board continues to find that the motor vehicle accident occurred. After active service, the Veteran underwent an enlistment examination for the Iowa Army National Guard in February 2005. The report includes a medical history where the Veteran denied having a history of a painful shoulder, arthritis, or swollen or painful joints. Additionally, the upper extremities portion of the examination was normal. This evidence calls into question the credibility of the Veteran's assertions that he has experienced left shoulder pain since his period of active service. This evidence also reflects a normal left shoulder and the Veteran was deemed to be physically qualified for National Guard service. The record reflects that it is after this time period when complaints of left shoulder pain are documented in the post-service VA treatment records. In April 2005, the Veteran was seen for left shoulder pain, which he reported to have been existing for one year. X-rays showed no bony abnormalities and he was assessed with left shoulder pain consistent with an acromioclavicular (AC) tear. At that time, he was put on temporary profile for left shoulder pain for the National Guard. A May 2005 VA treatment record notes left shoulder pain of unknown etiology likely either related to the AC joint or subacromial bursitis. The Veteran continued to be treated by VA for left shoulder pain and an April 2006 magnetic resonance image revealed questionable synovitis mild degenerative joint disease of the AC joint and a tear. He underwent a rotator cuff repair in May 2006. In October 2006, the Veteran underwent a VA examination of the left shoulder. The Veteran's history of a motor vehicle accident in Iraq with a left shoulder injury was noted. The diagnosis was left shoulder rotator cuff tear, status post surgical repair. The examiner did not comment on the origin of the left shoulder disorder. Pursuant to the Board's February 2011 remand, the Veteran underwent additional VA examination in connection with the claim in May 2011. The examiner reviewed the claims file and incorporated a detailed history of the Veteran's service and post-service treatment records in the report. X-rays showed no acute osseous injury and no significant degenerative changes. The impression was an unremarkable left shoulder. After examining the Veteran, the examiner provided a diagnosis of residual of supraspinatus muscle tear and subsequent surgical repair. The May 2011 VA examiner also provided an opinion that the left shoulder disorder is less likely as not caused by or a result of any other specific illness, injury or event that occurred during the Veteran's military service. The examiner noted that the Veteran underwent a left shoulder rotator cuff tear repair in May 2006. The examiner explained that, although it is possible that the Veteran could have sustained a contusion to his shoulder, the type of injury that would be anticipated from direct lateral blows to the shoulder or tip of the shoulder would be AC joint separation and not a rotator cuff/supraspinatus tear. The examiner also noted that there are no treatment records related to a left shoulder condition found in the military service records. Therefore, according to the examiner, it is very unlikely that this Veteran's supraspinatus tear and/or current shoulder condition is in any way related to the Veteran's military service. Although the May 2011 VA examiner expressly addressed the Veteran's left shoulder rotator cuff tear, the Board remanded the claim in April 2013 to obtain another medical opinion that addressed the etiology of the Veteran's degenerative joint disease of the AC joint of the left shoulder that was noted in the VA treatment records. Pursuant to the Board's April 2013 remand, the Veteran was afforded another VA examination in connection with the claim in June 2013. The examiner reviewed the claims file, and interviewed and examined the Veteran. X-rays showed moderate degenerative changes in greater tuberosity of the left humeral head, but no definite degenerative changes were seen in the left AC joint. The examiner provided diagnoses of status post left shoulder rotator cuff repair with residual weakness and decreased range of motion, and moderate degenerative changes seen at the humeral head, but no arthritis at the AC joint or glenohumeral joint. The examiner provided an opinion that it is less likely as not that the left shoulder was caused by or incurred in service. The examiner noted that the service treatment records do not document any left shoulder injury, VA treatment records in August 2004 and January 2005 do not mention any left shoulder pain, and the February 2005 National Guard enlistment examination is normal with a corresponding normal medical history. The examiner explained that the Veteran must have had a new event between February 2005 and April 2005 that led to left shoulder pain suddenly appearing in the medical record. The examiner stated that the Veteran may have even had another event between 2005 and his orthopedic visit in 2006 because there was a very different diagnosis at that time. Significantly, the examiner stated that it is very unlikely that the Veteran would have sustained a complete tear of his supraspinatus in 2003 and been able to fulfill his duties, be fit to re-deploy in 2004, and then make it two more years working as a for truck driver, or working on the line, without any type of accommodation for this type of injury. The examiner reiterated that the Veteran must have had a new event that injured his shoulder after his active duty period. The examiner also noted that the Veteran does not have arthritis of the left shoulder, but instead has degenerative changes on his humerus that would correspond to the attachment of tendons to the shoulder, and there is no evidence that striking the shoulder on a door window (in the motor vehicle accident) would cause such findings on x-ray. Here, the Board finds that the weight of the competent and probative evidence of record does not support a nexus between the Veteran's current left shoulder disorder of status post rotator cuff tear and his active duty service. Importantly, after consideration of the Veteran's entire claims file, the Veteran's statements, and after performing a physical examination of the Veteran, both the May 2011 and June 2013 VA examiners concluded that the Veteran's left shoulder disorder is not related to active service. The VA examiners provided explanation and rationale for the opinions. This explanation is supported by the evidence of record and the examination reports sufficiently inform the Board of the medical experts' judgment on the medical question and the essential rationale for the opinions. See Monzingo v. Shinseki, 26 Vet. App. 97, 105 (2012). In particular, the June 2013 VA examiner explained that a post-service injury or event must have occurred, otherwise records prior to April 2005 would have included notations of left shoulder problems given the type of disorder the Veteran had that led to the May 2006 surgery. Essentially, this absence of evidence of left shoulder complaints constitutes negative evidence because it would have been expected to be recorded in the records prior to April 2005 notation according to the examiner. See, e.g., AZ v. Shinseki, 731 F.3d 1303, 1315 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). Moreover, the VA examiner explained that the Veteran does not actually have arthritis of the left AC joint, but the degenerative changes correspond to the attachment of tendons to the shoulder and not consistent with the type of injury the Veteran would have experienced in the April 2003 motor vehicle accident. Lastly, the Board has considered the Veteran's opinion on the matter whereby he relates his current left shoulder disorder to his active military service. A valid medical opinion is not required to establish nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In the Veteran's case, the Board accords little evidentiary weight to the Veteran's lay opinion on the matter and finds the May 2011 and June 2013 VA examiners' opinions probative as to the question of nexus. The examiners are medical experts and provided competent medical opinions with the essential rationale for the opinions. The evidence regarding nexus weighs against the claim. Accordingly, as the competent and probative evidence weighs against a finding of the required nexus between military service and a current left shoulder disorder, service connection for a left shoulder disorder is not warranted. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. See 38 C.F.R. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). B. Scars on the Face and Nose The Veteran also contends that service connection is warranted for a scar on his face as he believes it is attributable to a head injury during military service. Specifically, he recalls that he was injured in approximately April 2004 or May 2004 when he was hit in the head with a piece of kitchen equipment while he was setting up a temporary field kitchen in Iraq. The Veteran states that he lost consciousness and has a scar as result of the impact. He maintains that any currently diagnosed scar on his face is related to the in-service injury. The Veteran's service treatment records contain a May 2000 enlistment examination report. He reported having a history of a head injury from when a statute fell on his head in 1994. The examination report contains a notation of a 1 cm. (centimeter) scar on the bridge of the Veteran's nose. When a condition is noted at entrance, a veteran is not presumed to have been in sound condition for that condition. See 38 C.F.R. § 1111; 38 C.F.R. § 3.304(b). Thus, the claim becomes one for service aggravation, at least for this specifically noted scar. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. For any other current scar, the Veteran is presumed to have been in sound condition when entering active service. The remaining available service treatment records are negative for any evidence of findings or complaints of scars or the injury from the temporary field kitchen. There are no entries from the time period of the claimed injury and there is no separation examination report. As detailed by the Board in the April 2013 decision that pertained to headaches, although there is no official documentation of the Veteran's head injury during military service, the Veteran's statements are competent evidence as to what he experienced through his senses in service, to include being hit in the head with a piece of kitchen equipment and losing consciousness. See Layno, 6 Vet. App. at 469-70. Additionally, while there is some question as to the credibility of the Veteran's statements, the Board resolves reasonable doubt in his favor and finds his statements that he experienced an in-service head injury in April 2004 or May 2004 to be credible. His service records show that his military occupational specialty was "cook." An injury occurring during the process of setting up a temporary field kitchen is consistent with the Veteran's circumstances of service. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (holding that in weighing the credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record). Accordingly, the Board finds that the Veteran's statements are competent and credible evidence as to a head injury while in service. Post-service treatment records do not reference a scar on the face or nose. Three VA examiners have evaluated the Veteran's scar or scars with conflicting results. First, in October 2006, a VA examiner noted that there was a scar measuring 1.4 cm. by .2 cm. across of the bridge of the Veteran's nose. The examiner diagnosed a healed laceration to bridge of nose. No express medical opinion was provided, but the examiner noted the Veteran's history of an injury when setting up a kitchen tent in April 2004 and the examiner did not appear to dispute the history. In contrast, the May 2011 VA examiner found a scar on examination characterized as on the bridge of nose measuring 3.8 cm. by .1 cm. The examiner provided an opinion that it is less likely as not that the scar was caused by or a result of the Veteran's service. The examiner noted that, even though the Veteran had a history that could explain the presence of the scar, the probability that he would be injured in the exact same location as his pre-existing 1 cm. scar is extremely small. The examiner also noted that there are no military service records to indicate treatment or follow-up for the reported injury, and the left lateral portion of the scar is easily missed and may have been missed on the intake physical examination as it appears to have been missed on other examinations. Given all of these difficulties, the examiner could not definitely say that this scar was or was not caused by military service. Given the varying measurements and the need to address the possibility of aggravation of the pre-existing scar, the Board remanded the claim in April 2013 to afford the Veteran another examination. Pursuant to the remand, the examination was conducted in June 2013. The clinical picture became clearer, as the June 2013 examiner found that there are actually two scars on or near the bridge of the Veteran's nose. There is one more to the left that is from childhood. The examiner measured the pre-existing scar as 1 cm. by .1 cm., which is consistent with the service entrance examination measurement. The second scar was measured as 1.5 cm. by .1 cm., which is more in line with the October 2006 examination measurement for that scar. The examiner noted the Veteran's history of an injury from the incident involving the temporary field kitchen, but provided an opinion that it is less likely than not that the scars were caused or incurred in service. The examiner also commented that there is no evidence that a scar was aggravated by events in service. The examiner thought that the Veteran's history was inconsistent in that when the incident is noted in VA treatment records (in connection with a head injury and headaches), a laceration to the nose is not mentioned. Although there is inconsistent evidence, the Board has determined that the Veteran's statements concerning the in-service head injury are credible as detailed previously. Given a head injury from being hit by part of the temporary field kitchen, it is plausible that such an incident would leave a scar across the bridge of the nose. The Board does not find the May 2011 and June 2013 opinions to be as persuasive as those concerning the left shoulder. The current scar on the bridge of the nose is not inconsistent with the inservice injury unlike it is with the left shoulder. Additionally, the opinion evidence does not point to a time period where there would be an intercurrent injury similar to the left shoulder. In consideration of the evidence, the Veteran has a second scar that he did not have on entrance into service and it cannot be explained other than by the injury from the temporary field kitchen. At the very least, reasonable doubt exists as to the question of the relationship between the Veteran's scar on the bridge of the nose and his military service. In considering the evidence of record and when resolving reasonable doubt in his favor, the Board finds that the evidence as to whether the Veteran's current scar on the bridge of his nose, and separate from his pre-existing scar to the left of the bridge of the nose, is related to his active military service is in equipoise. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; see also Gilbert, 1 Vet. App. at 49. The Veteran's scar on the bridge of the nose cannot be reasonably disassociated with his active military service. Therefore, service connection is warranted for the claimed disability, which is best characterized as scar on the bridge of the nose. See 38 U.S.C.A. § 1110; 38 C.F.R. §§ 3.303, 3.304. Given that the evidence now shows that there are two scars, the Board also finds that the Veteran's pre-existing scar (to the left of the bridge of the nose) from childhood did not increase in disability during service. The evidence does not show that any injury, disease or event caused the pre-existing scar to worsen during service. Instead, the injury in question is shown to have caused the separate second scar for which service connection is being granted. Therefore, the Board finds that the preponderance of the evidence is against the claim with respect to service aggravation of the pre-existing scar. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306. ORDER Service connection for a left shoulder disorder is denied. Service connection for a scar on the bridge of the nose is granted. Service connection for a pre-existing scar to the left of the bridge of the nose is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs