Citation Nr: 1338800 Decision Date: 11/25/13 Archive Date: 12/06/13 DOCKET NO. 09-14 633 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for right shoulder disability. 2. Entitlement to service connection for right hand disability. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The appellant served on active duty for training (ACDUTRA) in the Army National Guard (ARNG) from January 2, 1984, to April 30, 1984, from June 16, 1984, to June 30, 1984, and from June 7, 1985, to June 23, 1985. In February 1986, he was discharged from the Army National Guard of Texas under honorable conditions. This appeal comes before the Board of Veterans' Appeals (Board) from a November 2007 rating decision by the Waco, Texas Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO denied service connection for a right shoulder disability and a right hand disability. In November 2008, the appellant had a hearing before a Decision Review Officer (DRO) at the RO. In June 2011, he had a Travel Board hearing before the undersigned Acting Veterans Law Judge (AVLJ). The appellant's claims file contains transcripts of both hearings. The Board remanded the appeal for further evidentiary development in September 2011 and again in February 2013. The Board is satisfied that there has been substantial compliance with the remand directives. The Board will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). The Board has reviewed both the appellant's paper claims file and his file on the Virtual VA electronic file system, to ensure a total review of the evidence. FINDINGS OF FACT 1. A current right shoulder disability is not attributable to any injury during any period of National Guard training. 2. A right hand disability became manifest after all periods of National Guard training and was not caused by any disability for which service connection has been established. CONCLUSIONS OF LAW 1. A current right shoulder disability is not due to injury incurred in National Guard training. 38 U.S.C.A. §§ 101(24), 1131, 5107 (West 2002); 38 C.F.R. §§ 3.6, 3.303 (2013). 2. A right hand disability is not due to injury incurred in National Guard training, and is not proximately due to or the result of any service-connected disability. 38 U.S.C.A. §§ 101(24), 1131, 5107; 38 C.F.R. §§ 3.6, 3.303, 3.310 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the appellant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). Also, in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that that the VLJ who conducts a Board hearing fulfill duties to (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. The Board provided the appellant with VCAA notice in letters issued in March 2007 and May 2007, before the November 2007 rating decision denying the claims on appeal. In those letters the RO addressed the information and evidence necessary to substantiate claims for service connection. The RO informed the appellant how VA assigns disability ratings and effective dates. The letters also addressed who was to provide the evidence. In the June 2011 Travel Board hearing, the undersigned AVLJ fully explained the issues and suggested the submission of evidence that may have been overlooked. The appellant has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The Board therefore finds that, consistent with Bryant, the VLJ who conducted the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error provided in notice during the appellant's hearing constitutes harmless error. The appellant's claim file (including information on paper and in electronic form) contains service treatment records, available records of post-service treatment and examinations, statements from the appellant and a family member, and transcripts of the 2008 DRO hearing and the 2011 Board hearing. The appellant has had VA medical examinations that adequately address his claims. The appellant has asserted that the RO did not consider complete medical records from his National Guard service. Additional records were sought and obtained following the 2011 Board remand. In a March 2012 memorandum for the file, an RO claims examiner related the efforts made to obtain records and the records obtained. The claims examiner certified that the records obtained are the only records available, and that any further search for additional records would be futile. The Board is satisfied that all available medical records from the appellant's National Guard service have been obtained. In response to the 2011 and 2013 Board remands, additional service treatment records and VA treatment records for the appellant were obtained and associated with his file. The appellant had VA examinations in which the examiners reviewed the claims file and provided opinions that addressed the questions raised by the Board in the remand instructions. The Board is satisfied that there has been substantial compliance with the remand directives. Therefore, no additional remand is warranted, and the Board may proceed with review of those issues on their merits. See Stegall v. West, 11 Vet. App. 268 (1998). The Board finds that the appellant was notified and aware of the evidence needed to substantiate his claims, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the appellant and VA in obtaining such evidence. The appellant has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the appellant's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration of the claims on their merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Right Shoulder The appellant contends that he sustained a right shoulder injury during service and has had ongoing disability as a result. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. The appellant did not have active duty; he had periods of National Guard ACDUTRA. Therefore service connection is only appropriate for residuals of injury that occurred while he was participating in ACDUTRA or inactive duty of any kind with the National Guard. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6. An individual who has served only on ACDUTRA must establish a service-connected disability in order to achieve veteran status. In order to establish basic eligibility for veterans benefits based on his National Guard service, the appellant must first establish that he was "disabled...from a disease or injury incurred or aggravated in line of duty [in the National Guard]." See Paulson v. Brown, 7 Vet. App. 466, 470 (1995). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Medical records from the appellant's National Guard service include an August 1983 examination for enlistment into the National Guard. The examiner did not find any shoulder abnormality. The appellant did not report any history of shoulder problems in the medical history he completed at that time. The remainder of the medical records from the appellant's National Guard service are silent for any injury or other complaint involving his right shoulder. He received treatment in January 1984 for a hematoma and infected abscess on his left shoulder following a vaccination. That infection resolved with treatment. In February 2007, the appellant submitted a claim for service connection and disability compensation for right shoulder and right hand disabilities. He indicated that he sustained dislocation of his right shoulder in service in 1983, and that in 1985 he developed right hand weakness secondary to his service-connected right shoulder disability. From 2007 forward the appellant has received VA treatment for right shoulder pain. In August 2007, he reported right shoulder pain since a right shoulder injury that occurred in service, when he fell off of a wall. He indicated that during service the injury was treated with a sling. He stated that presently he had pain and restriction of motion in his right shoulder and weakness of his right arm and hand. Right shoulder x-rays taken in August 2007 showed an acromioclavicular (AC) separation of the clavicle about two centimeters higher than its original position, and bony productive changes off the inferior aspect. The radiologist who interpreted the x-rays stated that the changes were consistent with old trauma. A right shoulder MRI in September 2007 showed moderate degenerative changes of the AC joint, with an old AC joint separation injury, prominent ossifications of the coracoclavicular ligament, and an os acromiale. There were also tendon tears, tendon retraction, and significant muscular atrophy. Treatment records from 2007 forward reflect the appellant's ongoing reports of right shoulder pain and of a history of injury in service. In the November 2008 DRO hearing, the appellant reported that he sustained a right shoulder injury during basic training. He stated that, when he was climbing over a wall, he slipped, and his right shoulder struck the wall. He indicated that he thought his right shoulder had become dislocated. He stated that the drill instructor manipulated the shoulder and required the appellant to finish the obstacle course. The appellant stated that he went to sick bay the following day. He reported that after basic training he had treatment for his right shoulder problems at Midland Memorial Hospital in Midland, Texas. He indicated that at present he continued to have a knot on his right shoulder from the injury in basic training. He reported that he could not raise his right arm above his head. He stated that his right shoulder problems were worsening. He indicated that ongoing problems with the right shoulder and right hand produced difficulties and limitations in his work in food services. He reported that he received VA treatment for his shoulder problems. In 2008 the RO requested from Midland Memorial Hospital records of treatment of the appellant in 1983 and 1984. The hospital records department responded that they did not retain records for longer than ten years, and thus did not have records from 1983 and 1984. In an April 2009 statement, the appellant contended that VA had not received all of his service treatment records, that some must be missing. In June 2011, the appellant's mother wrote that when the appellant returned from service in April 1983, he was having trouble with his shoulder. She stated that his shoulder had worsened over the years. In the June 2011 Board hearing, the appellant stated that he sustained a right shoulder injury during basic training. He related that he was climbing a wall and lost his footing. He stated that this left his whole weight hanging from his right hand, with which he was holding the top of the wall. He reported that his right shoulder then popped out. He stated that another man helped him over the wall, and then he crawled for a distance under barbed wire to finish the course. He related that his right shoulder hurt but he was determined to finish the course. He indicated that after he finished the course he went to sick bay. He stated that at sick bay a doctor put his right arm in a sling and provided nonprescription pain medication. The appellant reported that he had treatment right after the injury for the right shoulder injury, and also had treatment in service for a knot on his left shoulder after a vaccination. The appellant reported that, after basic training, he had trouble with his right shoulder and sought treatment at Midland Memorial Hospital on two or three occasions in the mid 1980s. He stated that beginning about 2005 he sought VA treatment for right shoulder problems. He indicated that an MRI showed torn muscles in his right shoulder. He reported that ongoing right shoulder problems interfered with his occupation as a chef and cake decorator. On VA examination in January 2012, the examiner reported having reviewed the appellant's claims file. The examiner found that the appellant had right shoulder degenerative joint disease. The examiner provided the opinion that the medical evidence failed to show any relationship between events in service and the current right shoulder disorder. On VA examination in February 2013, the examiner reported having reviewed the appellant's claims file. The appellant reported that, during basic training, he was climbing a net, and another trainee fell back on him and caused him to fall. He stated that in the fall he tore and dislocated his right shoulder. He indicated that he received treatment, including splinting for a few days, and a limited duty profile. The examiner noted that the appellant's service treatment records did not show treatment for right shoulder injury or symptoms. The examiner noted in the claims file an account from the appellant on the history of right shoulder injury in service that differed from his account at the February 2013 examination. The examiner found that the appellant had right shoulder disability residual to injury. The examiner stated the opinion that it is less likely than not that the appellant's current right shoulder disability was incurred in service or is related to claimed injury in service. The examiner explained that the current disability was consistent with an AC separation injury. The examiner stated that AC separation occurs with downward force to the superior part of the acromion. He noted that such injury commonly produced severe pain and loss of movement. He stated that, even giving the benefit of the doubt to the appellant's account, it was almost inconceivable that the appellant could have continued training in service if he had sustained that type of injury then. The examiner noted that the service treatment records do not contain documentation of the claimed injury and treatment in service. He noted that imaging in 2007 showed findings consistent with old injury, but also noted that it was possible that the old injury seen in 2007 occurred later than during basic training. The evidence from the 1980s does not contain any indication that the appellant sustained a right shoulder injury during any period of National Guard ACDUTRA or had symptoms of right shoulder problems during or soon after any of those periods. The statements of the appellant and his mother regarding injury of and problems with his right shoulder during and following National Guard training were made after 2000, many years after the National Guard training. Regarding the condition of the appellant's right shoulder in the 1980s, the contemporaneous evidence from the 1980s is more likely to be accurate, and thus is more persuasive, than the recent statements, which rely on recollections of events more than 20 years earlier. The VA clinician who examined the appellant in 2013 noted that 2007 imaging showed old injury of the appellant's right shoulder. The examiner explained that an old injury of the type indicated by recent imaging produces, at the time of injury, such pain and limitation that an individual most likely would not be able to complete basic training after incurring such an injury. The examiner thus concluded that it is less likely than not that the injury that preceded the current right shoulder disability occurred during National Guard training as claimed. The examiner explained his opinion well, and the Board finds it persuasive. Thus, the Board, in assessing the competency and credibility of the appellant's statements and those of his mother, grants greater probative weight to the 2013 medical opinion. A chief factor in the Board's analysis the length of time between the claimed injury in the early 1980's, and the claim for compensation and VA treatment, first received in 2007, over 20 years later. This lengthy period without complaint or treatment is evidence that there has not been ongoing symptomatology, and weighs heavily against the claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Considering the lack of contemporaneous evidence of right shoulder injury during National Guard training periods, the lack of documentation of right shoulder problems during the years directly following the National Guard training periods, and the persuasive medical opinion against a connection between current right shoulder disability and events in service, the Board finds that the preponderance of the evidence is against service connection for the appellant's right shoulder disability. Right Hand The appellant reports that he has right hand disability manifested by weakness, numbness, and unexpectedly dropping things. He states that the right hand disability became manifest after his periods of National Guard training. He contends that the right hand disability developed as a result of his right shoulder disability. He does not contend or report that he sustained any injury of the right hand during any period of National Guard training. Secondary service connection may be granted for a disability which is proximately due to or the result of a service-connected disease or injury, or for aggravation of a non-service-connected disease or injury by a service-connected disease or injury. 38 C.F.R. § 3.310. The Board has found in this decision, as explained above, that the appellant's right shoulder disability is not service connected. The appellant's right shoulder disability therefore cannot form a basis for secondary service connection for his right hand disability. As the appellant does not claim and the record does not incurrence of right hand disability during any National Guard training period, and the right shoulder disability claimed as secondarily causing the right hand disability is not a service-connected disability, the Board denies direct and secondary service connection for the right hand disability. [CONTINUED ON NEXT PAGE] ORDER Entitlement to service connection for right shoulder disability is denied. Entitlement to service connection for right hand disability is denied. ____________________________________________ Thomas D. Jones Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs