Citation Nr: 1340200 Decision Date: 12/05/13 Archive Date: 12/20/13 DOCKET NO. 09-46 737 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to service connection for a left shoulder disability (to include residuals of a left shoulder injury). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD R. Chakraborty, Associate Counsel INTRODUCTION The Veteran served in the United States Army from August 1979 to June 1996. This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the Veteran's claim for service connection for residuals of a left shoulder injury. This rating decision had reopened the claim which had been last finally denied in February 1997. In December 2011 the Board under took a de novo review of the case and reopened the claim for service connection. The issue of service connection for residuals of a left shoulder injury was remanded for further development. That development has been completed and the matter is ready for consideration by the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The Veteran provided testimony at a videoconference hearing before the undersigned Veterans Law Judge in January 2011. A transcript of this hearing has been associated with the Veteran's claims folder. FINDING OF FACT The weight of the evidence is against a finding that the Veteran's current left shoulder disability is etiologically related to service to include an in-service left shoulder injury. CONCLUSION OF LAW A left shoulder disability was neither incurred in service nor aggravated by active service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Stegall Considerations As noted in the Introduction, the Board remanded this matter in December 2011. The Board instructed the RO to obtain, or inform the Veteran that he could submit, non-VA treatment records, and to schedule the Veteran for a VA examination with an examiner other than the examiners who conducted the November 2007 and October 2009 VA examinations. The RO had been instructed to have the examiner identify the nature and severity of the Veteran's residuals of a left shoulder disability and render an opinion as to whether it was at least as likely as not (i.e. a 50 percent probability of greater) that any left shoulder disability was due to or the result of the Veteran's active military service. In February 2012, such an examination was provided, and thus, there is compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist In correspondence dated in March 2007, prior to the November 2007 rating decision, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2013), known as the Veterans Claims Assistance Act of 2000 (VCAA). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claims; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. That letter also notified the Veteran of the process by which disability ratings and effective dates are established. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claims for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2013). The Veteran's service treatment records (STRs) and VA treatment records are in the claims folder. As previously mentioned, the Board had remanded this matter in December 2011 because the November 2007 and October 2009 examiners were unable to render an opinion regarding the likely etiology of the Veteran's left shoulder disability. The October 2009 examination had been conducted following a September 2009 conference with a RO Decision Review Officer, in which it was determined that the Veteran should receive an additional examination due in part to perceived deficiencies with the November 2007 examination. The February 2012 examination report reflected that the examiner reviewed the Veteran's claims file and his past medical history, recorded his current complaints, conducted appropriate physical examinations and interview, and rendered an appropriate diagnosis and opinions consistent with the remainder of the evidence of record. Pursuant to the remand in December 2011, the examiner addressed whether the Veteran's left shoulder disability is related to active service. The Board therefore concludes that this examination report is adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2013); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. The Board also observes that the Veteran was also afforded a hearing before the undersigned Veterans Law Judge (VLJ) during which he presented oral argument in support of his service connection claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2013) requires that the VLJ/DRO who chairs a hearing fulfill two duties. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) (2013), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2013). Legal Criteria The Veteran essentially contends that he has a left shoulder disability as a result of his military service. In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2013). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1166 (Fed. Cir. 2004). Service incurrence or aggravation of arthritis may be presumed if such disability is manifested to a compensable degree within a year of the Veteran's discharge from service. 38 U.S.C.A. §§ 1110, 1112, 1131; 38 C.F.R. §§ 3.307, 3.309 (2013). 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) (2013). A recent decision of the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) clarified that this notion of continuity of symptomatology since service under 38 C.F.R. § 3.303(b) (2013), which 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) (2013). Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). While arthritis is a listed disability under C.F.R. § 3.309(a), chronic shoulder strain and/or tendonitis are not. Analysis With respect to service connection on a presumptive basis, the Board notes that a November 2007 VA medical record indicated that radiological imaging of the left shoulder to rule out arthritis revealed "no significant bone or joint abnormality of the left shoulder is present." This study was interpreted as normal by a VA examiner. There is no other evidence of record that suggests that the Veteran has arthritis, nor that any arthritis symptoms manifested to a compensable degree within a year of the Veteran's discharge from service. Although the Veteran indicated to the November 2007 and October 2009 VA medical examiners that he has had pain, soreness and tenderness in his left shoulder "over the years," and specifically indicated to the October 2009 and February 2012 examiners that it was "after getting out of the military," there is nothing else that indicates that these complaints are indicative of arthritis that was manifested within a year of the Veteran's discharge from service. Moreover, the Veteran, while competent to report his pain, soreness and tenderness, is not competent to diagnosis arthritis or attribute his complaints to such disability. Therefore, service connection for left shoulder arthritis on a presumptive basis is not warranted. With respect to service connection on a direct basis, the record shows that the Veteran currently has a left shoulder disability. A January 2007 VA treatment record indicated a complaint of left shoulder pain, but the Veteran stated that it hurts "only when he lays on it," and that he had been doing 150 pushups daily. There was no injury noted, and a diagnosis of possible tendonitis of the left shoulder was rendered. The diagnosis of both the November 2007 and October 2009 VA medical examiners was tendonitis, and the examiner indicated that the Veteran had pain at the extremes of motion. The February 2012 VA examination report included a diagnosis of chronic shoulder strain. Based on the foregoing, the Board concludes that Shedden element one has been met. With respect to Shedden element two, medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, the Board observes that on the Report of Medical History for his separation examination, the Veteran reported "no" to question of whether he had painful or "trick" shoulder or elbow and the Veteran's upper extremities were found to be normal on examination. Nevertheless, STRs show one report of left shoulder pain for three weeks in April 1993 after the Veteran tripped in a train door and sustained an injury "because his shoulder absorbed the blow of his fall." The diagnosis at that time was left shoulder synovitis/tendonitis. In light of this documented shoulder injury, the Board concludes that, Shedden element two is satisfied. With respect to crucial Shedden element three, nexus, the question presented, i.e., the relationship, if any, between the Veteran's current left shoulder disability and his military service, is essentially medical in nature. The Board is prohibited from exercising its own independent judgment to resolve medical questions. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). The February 2012 VA medical examiner opined that "[i]t is less likely than not that the Veteran's right shoulder condition is related to the one time documented shoulder injury during his military service. There is no medical evidence of record from the time of the injury throughout the years to establish a nexus of symptoms/physical exam findings." In an August 2012 addendum, the examiner noted that the "shoulder identified as the right shoulder was in error" and that the examination and opinion pertained to the left shoulder. 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 Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir.1996); Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). The Board affords considerable weight to the February 2012 VA examination report. The examiner took a history of the Veteran's complaints and was aware of the in-service left shoulder injury. The examiner clearly indicated that he had essentially made a transcription error in referring to the right shoulder when the left shoulder disability was at issue. The examination report otherwise consistently referred to the left shoulder. The opinion by the VA examiner is consistent with the documented post-service treatment records that do not show any post-service left shoulder complaints until January 2007, approximately 11 years after the Veteran's discharge from service and approximately 14 years after his in-service complaints. The Board notes that the passage of time between the Veteran's discharge and an initial diagnosis for the claimed disorder is one factor that weighs against the Veteran's claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (noting that a lengthy period of absence of medical complaints for condition can be considered as a factor in resolving claim, just not the only or sole factor); see also Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where the Veteran had failed to account for lengthy time period between service and initial symptoms of disability). The Board has considered the Veteran's statements regarding his in-service injury and shoulder complaints over the years. The Veteran is competent to report events that occurred in service, and to describe symptoms of his left shoulder disability because this requires only personal knowledge as it comes to him through his senses. To the extent that the Veteran contends that a medical relationship exists between his current disability and service, the Board again acknowledges that lay persons are competent to testify as to observations. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Furthermore, lay witnesses may, in some circumstances, opine on questions of diagnosis and etiology. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (finding that the Board's categorical statement that "a valid medical opinion" was required to establish nexus, and that a layperson was "not competent" to provide testimony as to nexus because she was a layperson, conflicts with Jandreau). The Board acknowledges the January 2007 statements from the Veteran that his "claim for the left shoulder strain was filed with [his] original claim within 12 months of [his discharge]" and that "all of [his] supporting medical evidence was within [his] SMR and the VA healthcare system (Lorain CBOC)." In the instant case, however, the Board finds that the question regarding the potential relationship between the Veteran's current left shoulder disability and his military service to be complex in nature such that medical evidence of nexus is required. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Thus, the Board has placed greater weight on the opinion proffered by the 2012 VA examiner. While the Board sympathizes with the Veteran's current left shoulder problems, service connection is not warranted. As the preponderance of the evidence is against service connection for a current left shoulder disability, the benefit of the doubt doctrine is inapplicable and the Veteran's claim must be denied. 38 C.F.R. § 3.102 (2013). ORDER Service connection for a left shoulder disability (to include as a residual of a left shoulder injury) is denied. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs