Citation Nr: 1339999 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 10-27 365 ) 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 respiratory disorder. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service from April 1987 to May 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2009 decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa, which denied service connection for the claimed disorders. The Veteran appealed the denials of service connection in this decision, and the matter is now before the Board. The Veteran testified at a hearing at the RO in May 2011, before the undersigned Acting Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is associated with the claims file. Consideration of the Veteran's appeal has included review of all documents within the Virtual VA paperless claims processing system. The documents within the system do not include any non-duplicative materials pertinent to the present appeal. FINDINGS OF FACT 1. The Veteran injured his left shoulder in service. 2. The Veteran's current left shoulder disorder is not related to an in-service injury, or otherwise related to service. 3. The Veteran does not have a respiratory disorder. CONCLUSIONS OF LAW 1. A current left shoulder disorder was not incurred in service, may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). 2. The criteria for service connection for a respiratory disorder have not been met. 38 U.S.C.A. §§ 1101, 1110, 1117, 1131, 1137, (West 2002); 38 C.F.R. §§ 3.317, 3.159, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. A notice letter was sent to the Veteran in September 2008, prior to the initial adjudication of the claims on appeal. Notice sent to the Veteran included descriptions of what information and evidence must be submitted to substantiate the claims, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claims to the RO. The content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Moreover, in a hearing before the undersigned, the presiding Acting Veterans Law Judge clarified the issues on appeal and identified the types of potentially relevant evidence which may serve to substantiate the Veteran's service connection claims. These actions by the undersigned satisfy the obligations on the hearing officer imposed by 38 C.F.R. § 3.103. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). VA also has a duty to assist a veteran in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim"). The Board finds that VA has satisfied its duty to assist by acquiring service records as well as records of private and VA treatment. The duty to assist was further satisfied by VA examinations in February 2009 and June 2012, during which examiners conducted physical examinations of the Veteran, were provided the claims file for review, took down the Veteran's history, laid factual foundations for the conclusions reached, and reached conclusions and offered opinions based on history and examination that are consistent with the record. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2013); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). Based on the foregoing, VA has fully met its duties to notify and assist the claimant with the development of the claim and no further notice or assistance is required. Finally, in April 2012 the Board remanded both issues currently on appeal for additional development, including conducting new VA examinations on the matter of etiology of both claimed disorders. Since that time, a VA examination compliant with the Board's remand orders was completed in June 2012. Therefore, the Board finds that the RO substantially complied with the April 2012 remand directives regarding service connection for left shoulder and respiratory disorders, and the Board may proceed with a decision at this time. See Stegall v. West, 11Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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 disorders at issue referable to the respiratory system and left shoulder are not listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) does not apply. Walker v. Shinseki, 708 F.3d 1331, 1340 (Fed. Cir. 2013) (holding that the continuity provisions of 38 C.F.R. § 3.303(b) apply only to those disease listed under 38 C.F.R. § 3.309(a)). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). A veteran is presumed to have entered service in sound condition with respect to his or her health except as to defects, infirmities, or disorders "noted" on service entrance. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2013). Where no defect, infirmity, or disorder was noted on service entrance, the burden of proof is on VA to rebut the presumption by producing clear and unmistakable evidence that a disability existed prior to service. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the veteran's disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004) (citing 38 U.S.C.A. § 1153). Temporary or intermittent flare-ups during service of a preexisting injury or disease are not sufficient to be considered aggravation in service unless the underlying disability, as contrasted to the symptoms of that disability, has worsened. See Hunt v. Derwinski, 1 Vet. App. 292 (1991), Beverly v. Brown, 9 Vet. App. 402 (1996). The evidence establishes the Veteran had service in Saudi Arabia during the Persian Gulf War. Service connection may also be granted on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of qualifying chronic disability, including resulting from undiagnosed illness, that became manifest either during active service in the Southwest Asia theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 21, 2016, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). In claims based on qualifying chronic disability, unlike those for "direct service connection," there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004). Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). Lay evidence can be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, a lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as sustaining a fall leading to a broken leg. Id. A layperson is not competent to provide evidence as to more complex medical questions and, specifically, is not competent to provide an opinion as to etiology in such cases. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever). See 38 C.F.R. § 3.159(a)(2). Service Connection for a Left Shoulder Disorder The Veteran contends that a current left shoulder disorder is related to an in-service football injury. During his May 2011 hearing before the undersigned, the Veteran endorsed continuous shoulder symptomatology since the initial in-service injury and affirmatively denied any post-service shoulder injury. Service treatment records show that in March 1992, the Veteran was diagnosed with a rotator cuff strain upon complaints of a month-long history of left shoulder pain after being tackled while playing football. Radiographic imaging revealed no abnormalities of the shoulder. On separation examination in March 1992, the examiner remarked that the left shoulder strain was still symptomatic and objectively diagnosed an unresolved acute left shoulder rotator cuff strain, which was not considered disabling. In September 2004, the Veteran reported a history of left clavicle fracture, causing chest and back pain. At that time, the Veteran had joint pain with swelling, but was not using any medication for treatment. The left shoulder was also weak. On VA examination in February 2009, the Veteran reported an in-service football injury and reported a post-service history of working at Wal-Mart from the mid-1990s through the early 2000s when he was regularly "popping" his shoulder 5-10 times a day. The Veteran also reported fracturing his left clavicle playing softball in 2003. The February 2009 VA examiner conducted X-ray testing and diagnosed left shoulder impingement, with radiographic imaging revealing no evidence of an acute traumatic injury involving the left shoulder. The examiner opined that examination of the left shoulder revealed that "an impingement syndrome exists, which is secondary, in the majority of cases, to repetitive overhead work. This seems to have occurred at the Veteran's Wal-Mart job after leaving military service." On VA examination in June 2012, the Veteran was diagnosed with sprain, tendonitis, and dislocation/subluxation, all of the left shoulder. During the examination, the Veteran denied any post-service left shoulder injury, including while working at Wal-Mart from 1994 to 2004, but did endorse ongoing left shoulder symptomatology since service. X-ray imaging revealed distal clavicle changes consistent with an old distal clavicle fracture with acromioclavicular arthritic changes. The examiner opined that the Veteran's left shoulder disorders are likely due to a combination of the distal clavicle fracture trauma, aging, and a history of active lifestyle. The Veteran is competent to report on left shoulder pain, "popping," and dislocation as these are symptoms capable of lay observation, Layno v. Brown, 6 Vet. App. 465 (1994), and his endorsements of continuous symptomatology are competent. However, associating such symptoms with an in-service injury more than 20 years ago is well beyond the realm of lay competence. Thus, to the extent that the Veteran has indicated his current left shoulder symptomatology is related to service, such statements are not competent and therefore of no probative value. Of far greater probative value are the opinions of VA examiners which link the Veteran's left shoulder disorders to post-service civilian work, a 2003 left clavicle injury, aging, active lifestyle, or some combination thereof. The Board finds these opinions especially probative as they were based not only on physical examination and review of the claims file, but also on consideration of the Veteran's lay statements (including his endorsement of long-standing left shoulder symptomatology), and diagnostic testing in the form of radiographic imaging. Thus, notwithstanding the Veteran's competent endorsement of ongoing symptomatology, the evidence shows that the Veteran's current left shoulder disorders are not related to service. The Veteran's representative has argued that the February 2009 VA examiner's opinion is speculative, see Obert v. Brown, 5 Vet. App. 30 (1993) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus) and therefore of no probative value. The Board finds, however, that when considered in the context of the latter conclusions of the VA examiner in June 2012, the 2009 examination opinion is not speculative but rather supports the conclusion that the Veteran's current left shoulder disorder is not related to service. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Service Connection for a Respiratory Disorder The Veteran contends that his current respiratory disorder, manifested by shortness of breath and difficulty breathing began in service and is related to service. The Veteran's representative has also raised the issue of entitlement on a presumptive basis due to the Veteran's service in Saudi Arabia during the Persian Gulf War. During his hearing before the undersigned, the Veteran indicated that he "never had any breathing problems prior to Desert Storm," but that beginning in service he has experienced year-round allergies which he has treated with over-the-counter medications. At the outset, the Board notes that the Veteran had previously claimed service connection for residuals on an in-service rhinoplasty, a claim which he subsequently withdrew. Service treatment records show that on enlistment examination in March 1987, the examiner recorded that the Veteran had a history of mild seasonal allergies and complaints of wheezing/asthma. Nonetheless, the Veteran's lungs, chest, nose, and sinuses were "normal." The Veteran was treated for bronchitis in May 1987, and in June of 1989, the Veteran reported loss of breath and tightness in his left chest with a feeling he would "fall out" while running. He was diagnosed as having heat exhaustion with loss of consciousness after hyperventilating, and was instructed to take in more fluids. The remaining service treatment records are silent for any subsequent complaints, treatment, or diagnosis of bronchitis or other respirator disorder, and on separation examination in March 1992 the lungs, chest, nose, and sinuses were "normal." A veteran is presumed to have entered service in sound condition with respect to his or her health except as to defects, infirmities, or disorders "noted" on service entrance. See 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2013). Where no defect, infirmity, or disorder was noted on service entrance, the burden of proof is on VA to rebut the presumption by producing clear and unmistakable evidence that a disability existed prior to service. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). Here, although the Veteran endorsed a history of mild season allergies on service entrance, examination revealed that he was "normal" with respect to the lungs, chest, nose, sinuses. Regardless, whether the Veteran entered service in sound condition is moot in this case for the reasons discussed below. In July 1993, the Veteran was seen at a private facility where he endorsed a history of bronchitis. A radiographic study of the chest revealed that the lungs were clear with no evidence of infiltrates, effusions, or atelectasis. There were no soft tissue nodules, and the visualized osseous and soft tissues were unremarkable. The overall impression was of an unremarkable chest examination. A VA treatment note of September 2004 indicates that the Veteran reported first noticing shortness of breath after leaving military service. The Veteran was "very active" and over time he noted increasing shortness of breath beginning in 1999. He reported that whenever going outside, he becomes congested and short of breath. The Veteran had been taking Claritin, but this no longer provided relief. Sudafed, however, did sometimes help. The Veteran reported year-round "allergies," and also complained of rhinorrhea, itchy, watery, burning eyes. Symptoms became worse when cutting and chipping wood as part of his job. Following a physical evaluation, including of the nose, neck and respiratory system, the assessment was of shortness of breath, "likely asthma/allergies," and the Veteran was started on an albuterol inhaler. On respiratory evaluation in November 2004, the Veteran's chest movement was symmetrical and the chest was without deformity. Breathing was at a normal rate, the lungs were clear to auscultation with good effort, and no rales or rubs were noted. Wheezing and rhonchi were absent. In March 2007 the Veteran complained of chest pain. X-ray examination revealed fully ventilated and clear chest fields, without pleural deformity. In September 2007, the Veteran denied respiratory symptoms, and on physical examination, the lungs were clear in all fields. On VA treatment in October 2008 for migraines and depression, the Veteran endorsed seasonal allergies, for which he was taking Zyrtec. The assessment was seasonal allergies. The February 2009 VA examiner noted that the Veteran had a history of nasal fractures prior to service which resulted in a nasal deformity, and noted right nasal cavity obstruction resulted in difficulty breathing while running. The Veteran endorsed seasonal allergies, but denied lung or breathing problems. Pulmonary function testing was normal. The examiner provided an equivocal opinion against the Veteran's respiratory disorder claim, stating that, "[s]oft tissue swelling due to environmental allergies may account for difficulty with nasal breathing." On VA examination in June 2012, the Veteran was found not to have a respiratory disorder. Diagnostic testing, including radiographic imaging and pulmonary function testing were normal. The examiner considered the Veteran's claims file, and his lay history in which he endorsed in-service bronchitis, pleurisy, and shortness of breath. The Veteran denied any pre-service respiratory symptoms, and said that he has had some difficulty getting air into his nose ever since in-service nasal surgery, and thus sometimes breaths through his mouth instead. The Board finds that the Veteran does not have a current respiratory disorder, and thus service connection cannot be established. While the Veteran has endorsed some histories of allergies in the past, the record includes only a tentative assessment confirming such diagnosis in 2008. Other treatment and examination records indicate that the Veteran does not have a respiratory disorder and on his most recent VA examination, the Veteran had no respiratory symptoms other than some limitation related to breathing through the nose which has been associated with an in-service rhinoplasty operation. To that end, the Board reiterates that the Veteran withdrew the claim for residuals of a rhinoplasty. The Veteran indicated he is taking over the counter medication for treatment of allergies. However, VA examiners have also noted the Veteran's lay contention of such self-medication, and have still not diagnosed or suggested a diagnosis referable to allergies. To the extent that the Veteran claims he developed a respiratory disorder as a result of in-service exposure during Desert Storm from alleged environmental hazards, such as sand, dust, smoke from burning oil fields and oil drums, the Veteran is not competent to make such an assertion. See Layno v. Brown, 6 Vet. App. 465 (1994). And furthermore, again, the Veteran has no respiratory disorder with which to associate with service. While service connection may be established for an undiagnosed illness or a medically unexplained chronic multisymptom illness under 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317, here the Veteran has no current symptoms and thus no illness, either undiagnosed or unexplained. Thus, as the Board finds that the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Service connection for a left shoulder disorder is denied. Service connection for a respiratory disorder is denied. ____________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs