Citation Nr: 1343301 Decision Date: 12/30/13 Archive Date: 01/07/14 DOCKET NO. 08-37 539 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a left shoulder condition, to include degenerative joint disease (DJD). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD A. Spector, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1966 to August 1969. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2007 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia. The Veteran filed a notice of disagreement (NOD) with this determination in October 2007, and timely perfected his appeal in November 2008. In September 2011 and February 2013, the Board remanded the issue on appeal for further examination. This development has been completed and the issue on appeal is ready for review. The Board notes that, in addition to the paper claims file, there is a Virtual VA paperless claims file associated with the above claim. A review of the documents in such file reveals that there are additional VA treatment records related to the Veteran's claim on appeal. These records have been reviewed and considered by the Board. FINDING OF FACT The evidence does not demonstrate that the Veteran's current left shoulder disabilities, DJD of the glenohumeral joint and status post repair of a complete tear of the rotator cuff, are related to his active service. CONCLUSION OF LAW The criteria for establishing service connection for a left shoulder disability have not been met. 38 U.S.C.A. §§ 1101, 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the duty to notify was satisfied by way of a letter sent to the Veteran in January 2007 that fully addressed all notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the Veteran of what evidence was required to substantiate the claim and of the Veteran's and VA's respective duties for obtaining evidence. This letter also provided notice regarding how disability ratings and effective dates are assigned if service connection is awarded. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board recognizes that, under VA's governing regulations, it is obligated to make reasonable efforts to assist an appellant in obtaining evidence necessary to substantiate his claim, including any "relevant records" in the custody of VA or another federal agency. 38 C.F.R. § 3.159(c)(2). However, with respect to the Veteran's claims of service connection, the Board observes that the duty to assist is not boundless in scope, and VA is only required to make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. VA is not required to assist him in obtaining identified records if no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(c)(1); Golz v. Shinseki, 590 F.3d 1317, 1321-22 (Fed. Cir. 2010). Additionally, the Board notes that although VA has a statutory duty to assist the Veteran in developing evidence pertinent to a claim, the Veteran also has a duty to assist and cooperate with VA in developing evidence; the duty to assist is not a one-way street. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Board acknowledges that the RO is required to obtain Social Security Administration (SSA) records prior to adjudicating an appellant's claim in compliance with its duty to assist. See Murinscak v. Derwinski, 2 Vet. App. 363 (1992); 38 C.F.R. § 3.201(a) (2012). In this case, however, the Veteran's SSA records have been determined to be unavailable. Specifically, a September 2011 response from SSA noted that the Veteran's folder was destroyed. The RO sent the Veteran a December 2011 letter informing him that they were unable to obtain his SSA records, and asking him to provide a copy of any SSA records in his possession; however, the Veteran failed to respond to this inquiry. In a January 2012 memorandum, the RO made a formal finding of unavailability of SSA records, noting all efforts made to obtain these records. The VA has also done everything reasonably possible to assist the Veteran with respect to his claim for benefits, such as obtaining the Veteran's service treatment records, VA and private medical records, and affording him VA examinations in connection with his claim in December 2011 and March 2013. The record does not otherwise indicate any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained or attempted to be obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board finds that further efforts to obtain any records would be futile, and a remand for this purpose is not warranted. Sabonis v. Brown, 6 Vet. App. 426 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided); VAOPGCPREC 5-04 (2004), 69 Fed. Reg. 59,989 (2004). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. II. Service Connection Legal Criteria Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) evidence of a nexus between an in-service injury or disease and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 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. Certain listed disabilities, such as arthritis, may be presumed to have been incurred during active military service if manifested to a degree of 10 percent within the first year following 90 days or more active service. 38 U.S.C.A. §§ 1101, 1112, 1137 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.307, 3.309 (2012). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for the 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). 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. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the Veteran. Background The Veteran contends that he initially injured his left shoulder in-service. In particular, he alleges that he suffered injury to the left shoulder at Fort Belvoir when he was struck by a steel beam. The Veteran is claiming that he injured his left shoulder at the same time he injured his left thumb, which has previously been determined to be service-connected. Additionally, he also contends that he injured his left shoulder while serving in Vietnam when he jumped down into a bunker. He reported that when he jumped, his rifle caught on entry into the bunker putting all of his weight on his arms, injuring his left shoulder. The Veteran's service treatment records reflect that he was treated for a crush injury of the left thumb in January 1967 at Fort Belvoir. The Veteran's service treatment records do not document any complaints or a diagnosis of a left shoulder injury. Post-service private medical records first show complaints of arthritic pain in the shoulders in May 2001. Additionally, in July 2001, treatment records show that the Veteran complained of left shoulder pain periodically. A diagnosis of osteoarthritis was noted at that time. Further, a private medical report from March 2002 reflects that the Veteran was involved in a car accident in March 2002 and that he had some left shoulder pain. On VA examination in March 2003, it was noted that the Veteran "had injuries to his shoulders." It was noted that the Veteran had a fracture of the left humerus in March 2002, secondary to a motor vehicle accident. X-rays taken at that time showed mild degenerative changes of the left acromioclavicular joint. The examiner concluded by noting a fracture of the left humerus, secondary to a motor vehicle accident in March 2002. The Veteran was afforded with a VA examination in December 2011. After examining the Veteran, the VA examiner concluded that the Veteran had DJD of the left shoulder status post left shoulder arthroplasty. The examiner stated that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. Additionally, the examiner stated that the claims file did not reveal a history of a left shoulder injury or the Veteran being evaluated for a left shoulder condition during active service. The examiner stated that the claims file revealed that the Veteran sustained a crushed injury to the left thumb when a metal beam fell on his left hand in 1967, and a left wrist fracture while stationed in Vietnam in 1969. Further, the examiner noted the Veteran's 2002 motor vehicle accident, which was followed by left shoulder surgery. Although the requested etiological opinion was provided, the examiner based her opinion on the fact that there was no treatment or diagnosis of a left shoulder condition in the Veteran's service treatment records, and did not acknowledge or discuss the Veteran's lay statements discussing the reported in-service incidents or continuity of symptomatolgy of his left shoulder condition since service. The Board notes that an examiner cannot ignore lay evidence of an in-service injury and base an opinion that there was no relationship to service solely on the lack of in-service corroborating medical records. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007); see also 38 C.F.R. § 4.2 (2012) (stating that if the findings on an examination report do not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes an examination, even if not required to do so, an adequate one must be produced). Additionally, the December 2011 VA examiner failed to discuss treatment records dating back to May 2001 that note periodic left shoulder pain and a diagnosis of osteoarthritis prior to the Veteran's 2002 motor vehicle accident. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (stating that when the Secretary undertakes to provide a medical examination or obtain a medical opinion, he must ensure that the examiner providing the report or opinion is fully cognizant of the claimant's past medical history). Therefore, the issue was remanded for a new VA examination to determine whether the Veteran's current left shoulder condition was incurred in, or is otherwise related to, the Veteran's time in service. The Veteran was afforded another VA examination in March 2013. The Veteran reported that he had a left shoulder injury in Vietnam by his history; he did not seek medical attention. He also reported injury to both shoulders at a job related injury in an 123 foot fall in his equipment at a strip mine in 1971. He also had a rotator cuff repair to the left shoulder around 2007. The VA examiner noted 2013 diagnoses of a rotator cuff repair and degenerative arthritis of the glenoid area of the left shoulder. Additionally, the Veteran reported an in-service injury while serving in Vietnam, while jumping into a bunker. He said that he did not see a doctor for this complaint for 20 years or more because he felt that the left shoulder would eventually get better. The examiner noted that by the Veteran's history above, he did not mention his left shoulder to any personnel during the remainder of his military service (about 18 months). December 2011 x-rays show that the Veteran had post-surgical changes noted on the left shoulder, with bilateral degenerative changes. The VA examiner noted his extensive review of the claims file and all of the medical evidence of record considered while rendering his medical opinion in reference to the Veteran's left shoulder disability. The examiner concluded that the etiology of the Veteran's torn rotator cuff was likely as not due to the motor vehicle accident in 2002. The Veteran described putting a great deal of stress on his shoulders trying to stop his body from flying forward by bracing his arms on the dash of his car as it struck the other vehicle. The arthritic changes in the left glenoid area were as likely as not due to his work running an end loader for 17 years and the aging process (wear and tear). The Veteran's history of his work prior to the motor vehicle accident, was constructing a metal platform that required welding and climbing in positions that would require good arm strength and use overhead. The injury by a steel beam was at Fort Belvoir prior to his time in Vietnam. There was an injury to the left thumb. His thumb healed with time and he returned to full duty in relation to this injury. His complaints of pain in the left shoulder for many years were as likely as not credible, but the timing of the beginning of these complaints was the bone of contention. There was a good deal of indirect evidence that a reasonable person with a continuing complaint had ample opportunity to bring forth a simple complaint of "my left shoulder hurts" at one of his many documented visits, and if it was a continuing problem that would have been brought to light with his private physician when they discussed his right shoulder complaints prior to the motor vehicle accident in 2002. This complaint if that minor over the years did not constitute in the examiner's opinion, a "continuing disability." Analysis The Board finds that the weight of the competent evidence shows that the Veteran is not entitled to service connection for a left shoulder disability. Although he has a current diagnosis of a left shoulder disability, to include DJD and status post rotator cuff repair, the existing medical evidence does not show that these conditions manifested in-service or are otherwise related to service. As discussed above, the evidence does not show that the Veteran manifested arthritis of the left shoulder during active military service. In addition, there is no medical evidence of record showing that arthritis was manifested during his first post-service year. The evidence of record shows that degenerative arthritis of the Veteran's left shoulder was first shown on x-ray at the March 2003 VA examination, many years after being discharged in 1969. Therefore, a presumption of service connection for arthritis as a chronic disease is not warranted. See 38 C.F.R. §§ 3.307, 3.309. Concerning in-service incurrence, the Veteran's service treatment records are completely unremarkable for any relevant complaints, treatment, or diagnosis of a left shoulder disability. While the record does show that the Veteran was treated for a crush injury of the left thumb in January 1967 at Fort Belvoir, complaints or a diagnosis of a left shoulder injury were not noted at that time. There is no objective indication of a left shoulder disability while he was in service, to include his time serving in Vietnam. This is probative evidence against the notion that the Veteran has a left shoulder disability as a direct result of disease or injury incurred during his active military service. See Struck v. Brown, 9 Vet. App. 145 (1996). Further, the Veteran also has failed to provide any objective indication of a left shoulder disability until May 2001, more than three decades after his military service ended. The lapse of so many years after his separation from service and the first documented suggestion of this claimed disorder is also probative evidence to be considered in determining whether this claimed disability may be traced back to his military service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Of equal or even greater significance, while the Veteran has submitted medical evidence indicating he has been diagnosed with a left shoulder disability, there simply is no medical evidence of record etiologically linking a left shoulder disability to the Veteran's military service, to include an incident at Fort Belvoir or while jumping into a bunker while serving in Vietnam. As previously mentioned, the March 2013 VA examiner concluded that the etiology of the Veteran's torn rotator cuff was as likely as not due to the motor vehicle accident in 2002. The Veteran described putting a great deal of stress on his shoulders trying to stop his body from flying forward by bracing his arms on the dash of his car as it struck the other vehicle. The arthritic changes in the left glenoid area were likely as not due to his work running an end loader for 17 years and the aging process (wear and tear). The Veteran's history of his work prior to the motor vehicle accident was constructing a metal platform that required welding and climbing in positions that would require good arm strength and use overhead. The records show that the Veteran's thumb injury by a steel beam at Fort Belvoir healed with time and he returned to full duty in relation to this injury. His complaints of pain in the left shoulder, if that minor over the years, did not constitute in the examiner's opinion a "continuing disability." The Board has carefully considered the Veteran's assertions that he has a left shoulder disability that is related to in-service incidents while serving at Fort Belvoir and Vietnam. However, as a layperson with no demonstrated medical training or experience, he is not competent to give a medical opinion on the complex medical question of whether his left shoulder disability is a result of in-service incidents. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms, but not to speak as to diagnosis or etiology except in limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg). The Board acknowledges that the Veteran is competent to give evidence about the symptoms that he has experienced. Layno v. Brown, 6 Vet. App. 465 (1994). Competency must be distinguished, however, from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67 (1997). The Federal Circuit Court has recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Thus, the Board rejects the Veteran's unsubstantiated lay contentions because medical evidence in the file shows that his left shoulder disability did not have its onset in-service, but first manifested more than three decades after service. Additionally, contrary to the Veteran's assertions and as stated in the VA examination reports above, the competent evidence establishes that the Veteran's left shoulder disability was also not a result of an in-service incident, but related to wear and tear of more than 17 years performing his specific type of employment and a 2002 motor vehicle accident. There can be no doubt from review of the record that the Veteran rendered honorable and faithful service for which the Board is grateful, and the Veteran is sincere in his belief that his has a left shoulder disability that is related to his time in-service. While the Board has carefully reviewed the record in depth, it has been unable to identify a basis upon which service connection may be granted. The Board has also carefully considered the benefit of the doubt rule, but as the preponderance of the evidence is against the claim, the evidence is not in equipoise, and there is no basis to apply it. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for a left shoulder disability, to include DJD, is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs