Citation Nr: 1342597 Decision Date: 12/23/13 Archive Date: 12/31/13 DOCKET NO. 10-13 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for joint pain of the left shoulder, to include degenerative joint disease with associated bursitis, claimed as an undiagnosed illness. 2. Entitlement to service connection for joint pain of the right shoulder, to include degenerative joint disease, claimed as an undiagnosed illness. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from July 1976 to February 1984 and from November 1990 to June 1991. This case comes to the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision by the Muskogee, Oklahoma, Department of Veterans Affairs (VA) Regional Office (RO). In September 2011, the Veteran withdrew his request for a Board hearing. In December 2012 and September 2013, the Board remanded these claims for further development. A March 2008 VA treatment record reflects an assessment of degenerative joint disease of the left acromioclavicular joint with associated bursitis. Therefore, the issue pertaining to service connection for joint pain of the left shoulder includes bursitis and the issues are as stated on the title page. The Board's review includes the electronic record. FINDINGS OF FACT 1. The weight of the evidence is against findings that the Veteran's complaints of left shoulder joint pain since he filed his claim in December 2006 are attributable to undiagnosed illness; that left shoulder degenerative joint disease with associated bursitis was demonstrated in-service; that left shoulder degenerative joint disease with associated bursitis was compensably disabling within a year of separation from either period of active duty; or that there is a nexus between the current diagnosis of left shoulder degenerative joint disease with associated bursitis and service. 2. The weight of the evidence is against findings that the Veteran's complaints of right shoulder joint pain since he filed his claim in December 2006 are attributable to undiagnosed illness; that right shoulder degenerative joint disease was demonstrated in-service; that right shoulder degenerative joint disease was compensably disabling within a year of separation from either period of active duty; or that there is a nexus between the current diagnosis of right shoulder degenerative joint disease and service. CONCLUSIONS OF LAW 1. Left shoulder degenerative joint disease with associated bursitis, to include due to an undiagnosed illness, was not incurred or aggravated while on active duty, and it may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1117, 1131, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.317 (2013). 2. Right shoulder degenerative joint disease, to include due to an undiagnosed illness, was not incurred or aggravated while on active duty, and it may not be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1117, 1131, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.317. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The requirements of the 38 U.S.C.A. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in January, March, May, June, August, and October 2007, and January 2013 (pursuant to the December 2012 Board remand) of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. In the January 2007 letter, VA notified the appellant of how VA determines the disability rating and effective date. The claims were most recently readjudicated in a November 2013 supplemental statement of the case. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording a VA examination. The RO and AMC obtained service and VA treatment records, to include VA treatment records pursuant to the December 2012 Board remand. The appellant underwent a VA examination in February 2013, pursuant to the December 2012 Board remand. The VA examiner provided an addendum to the examination report in October 2013, pursuant to the September 2013 Board remand. The Board notes that the VA examination and addendum provided sufficient clinical findings so as to allow the Board to address whether his bilateral shoulder disorder is related to active service. Therefore, the Board finds that the examination and addendum are adequate on which to base a decision. In light of the above, the AMC complied with the directives of the December 2012 and September 2013 Board remands. Stegall v. West, 11 Vet. App. 268 (1998). Governing law and regulations Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be warranted 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). Certain chronic disabilities, such as arthritis, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from active duty. 38 U.S.C.A. §§ 1101, 1112, 1137; 38 C.F.R. §§ 3.307, 3.309. In order to establish service connection for a claimed disorder, there must be (1) 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 Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may also be established for a chronic disability resulting from an undiagnosed illness which 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 31, 2016. See 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317; 76 Fed. Reg. 81,834. The term "Persian Gulf veteran" means a veteran who served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(d)(1). The Southwest Asia Theater of operations includes Iraq, Kuwait, Saudi Arabia, the neutral zone between Iraq and Saudi Arabia, Bahrain, Qatar, the United Arab Emirates, Oman, the Gulf of Aden, the Gulf of Oman, the Persian Gulf, the Arabian Sea, the Red Sea, and the airspace above these locations. 38 C.F.R. § 3.317(d)(2). A 'qualifying chronic disability' means a chronic disability resulting from any of the following (or any combination of any of the following): an undiagnosed illness; a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms; and any diagnosed illness that the Secretary determines. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1)(i). Objective indications of a chronic disability include both "signs," in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for six months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a six-month period will be considered chronic. The six-month period of chronicity will be measured from the earliest date on which the pertinent evidence establishes that the signs or symptoms of the disability first became manifest. A chronic disability resulting from an undiagnosed illness referred to in this section shall be rated using evaluation criteria from the VA's Schedule for Rating Disabilities for a disease or injury in which the functions affected, anatomical localization, or symptomatology are similar. A disability referred to in this section shall be considered service-connected for the purposes of all laws in the United States. 38 C.F.R. § 3.317(a)(2-5). Signs or symptoms which may be manifestations of an undiagnosed illness include, but are not limited to, signs or symptoms involving joint pain. 38 C.F.R. § 3.317(b). In cases where a veteran applies for service connection under 38 C.F.R. § 3.317 but is found to have a disability attributable to a known diagnosis, further consideration under the direct service connection provisions of 38 U.S.C.A. § 1110 is nevertheless warranted. See Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994). Analysis The Veteran served on active military, naval, or air service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317(d)(1). The weight of the evidence is against a finding that the Veteran's complaints of joint pain since he filed his claim in December 2006 are attributable to an undiagnosed illness. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317. Instead, the weight of the evidence, specifically VA treatment and examination reports, shows that the left shoulder degenerative joint disease with associated bursitis and right shoulder degenerative joint disease are diagnosed disorders. Accordingly, there is no basis for his claim that his joint pain in the shoulders is due to an undiagnosed illness occasioned by service in the Persian Gulf. As the appellant's claimed joint pain have been diagnosed as known disorders, i.e., left shoulder degenerative joint disease with associated bursitis and right shoulder degenerative joint disease and not joint symptomatology due to an undiagnosed illness, the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 are not applicable. The Board has reviewed all of the evidence of record, to include service treatment records and VA treatment and examination reports. The weight of the evidence is against findings that left shoulder degenerative joint disease with associated bursitis or right shoulder degenerative joint disease was demonstrated in-service; that left shoulder degenerative joint disease with associated bursitis or right shoulder degenerative joint disease was compensably disabling within a year of separation from either period of active duty; or that there is a nexus between the current diagnoses of left shoulder degenerative joint disease with associated bursitis and right shoulder degenerative joint disease and service. The service treatment records from both periods of service show the Veteran was assaulted in January 1977. He suffered tender left trapezius and deltoid muscles. The diagnosis was minor multiple soft-tissue injuries. In February 1983, the appellant complained of a tender upper back. The assessment included acute upper back strain. At the December 1986 and August 1988 Army National Guard examinations, the upper extremities were normal and the appellant denied any history of a painful or trick shoulder. Similarly, at the April 1991 separation examination, the upper extremities were normal and the claimant denied any history of a painful or trick shoulder. Arthritis was not diagnosed within one year of separation from either period of active service. In an October 2013 addendum to the February 2013 VA examination report, the examiner opined that that the bilateral degenerative joint disease of the shoulders was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner's basis was the bilateral degenerative joint disease of the shoulders was not related to active service. The examiner noted that the in-service assault and strain were acute injuries without an associated shoulder injury being reported. The examiner indicated that all records were reviewed and that no history of a shoulder injury was noted. The examiner added that the Veteran had a history of physically difficult and strenuous jobs since military service. In his March 2010 VA Form 9, the Veteran argues that a letter from his VA treating doctor relates his shoulder disorder to active service. There are three letters from that doctor. None of them supports the appellant's assertion. The May and July 2009 letters from that doctor do not even address a shoulder disorder, and a November 2010 letter from that doctor only provides a treatment history. The Board has considered the Veteran's assertion in his January 2007 claim that his joint pain began in June 1991. The appellant is competent to report this history of symptoms. The Board, however, does not find him credible because of his conflicting reporting as to the dates of onset of symptomatology. At a January 2007 VA Persian Gulf Registry examination, the claimant reported that the pain in his shoulders only began five years ago. Furthermore, although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, the relationship between his degenerative joint disease and bursitis and his military service, falls outside the realm of common knowledge of a lay person. See Jandreau, 492 F.3d at 1733 n. 4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In summary, for the reasons and bases set forth above, the Board concludes that the most credible and probative evidence weighs strongly against finding that his left shoulder degenerative joint disease with associated bursitis and right shoulder degenerative joint disease are related to service. Therefore, the preponderance of the evidence is against the claims, and they are denied. ORDER Service connection for joint pain of the left shoulder, to include degenerative joint disease with associated bursitis, claimed as an undiagnosed illness, is denied. Service connection for joint pain of the right shoulder, to include degenerative joint disease, claimed as an undiagnosed illness, is denied. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs